The decision in Menz v Wagga Wagga Show Society confirms the Courts application of the provisions of the Civil Liability Act 2002 in relation to the conduct of recreational activities.
The effect of this decision is that any person who might be injured in participating in a dangerous recreational activity has no entitlement to damages even if the injury is caused by the negligence of the organisation conducting the event, including a failure to follow its own rules.
It has become clear that the interpretation of a dangerous recreational activity is being widely applied and could incorporate activities including common recreational activities such as bike riding, motorbike riding, horse riding, riding for the disabled, football, netball, water skiing and similar such activities.
This decision sends a clear message to participants in recreational activities that they ought obtain their own personal injury insurance including income protection insurance.
In effect, a participant in a recreational activity will have no entitlement to damages from the insurer of the organising committee in almost all circumstances. The effect of this position is that there is no incentive for organisers of recreational activities to be vigilant regarding the application of proper precautionary measures which one might expect during the conduct of such an activity.
The legislative changes which have led to this position were as a consequence of significant agitation by insurance companies to the government. Such insurers are now in a position where they continue to collect premiums in respect of public liability insurance relating to the conduct of such events and have little or no liability for any claim that might arise.
These recent decisions make it clear that the government ought urgently revisit this issue to protect community members who may be injured through no fault of their own whilst engaging in a recreational activity.