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This is a Bill, not an Act. For current law, see the Acts databases.


LANDOWNERS PROTECTION (RECREATIONAL USE OF LAND) BILL 2002

[BIL037-B.HAL]

House of AssemblyNo. 14

[As laid on the table and read a first time, 30 May 2002]

South Australia

[Prepared by the Parliamentary Counsel on the instructions of the Hon. D. Kotz]

LANDOWNERS PROTECTION (RECREATIONAL USE OF LAND) BILL 2002

A Bill For

An Act to limit the liability of certain landowners for injury suffered by persons who enter their land for a recreational purpose; and for other purposes.

[OPC-H42]


SUMMARY OF PROVISIONS

1.Short title

2.Commencement

3.Interpretation

4.Limitation of standard of care to gratuitous entrants in certain cases

5.Recreational access agreement

6.Regulations


The Parliament of South Australia enacts as follows:

Short title

1. This Act may be cited as the Landowners Protection (Recreational Use of Land) Act 2002.

Commencement

2. This Act will come into operation on a day to be fixed by proclamation.

Interpretation

3. In this Act—

"gratuitous entrant" means a person—

(a)who makes a request, or on whose behalf a request is made, to an occupier of land for permission to enter the land for a recreational purpose; and

(b)who enters the land, in accordance with a permission granted by the occupier, without paying any entrance fee or charge or giving any other commercial consideration;

"land" includes—

(a)premises;

(b)water or other substances lying on the surface of land;

(c)objects lying on the surface of land or embedded or partially embedded in land (whether or not they form part of the land);

"latent defect" means a defect that might reasonably escape the attention of a person taking reasonable care;

"occupier" includes an owner of land;

"occupier's liability" means liability in tort for personal injury arising from the defective state or condition of land;

"ordinary law of occupier's liability" means the law of tort governing occupier's liability as modified by section 17C of the Wrongs Act 1936;

"recreational purpose" includes a purpose classified by regulation as a recreational purpose;

"recreational user" of land means a person who enters land for recreational purposes.

Limitation of standard of care to gratuitous entrants in certain cases

4. (1) An occupier of land to which this section applies is exempt from occupier's liability to a gratuitous entrant unless—

(a)the defective state or condition of the land was not apparent to the entrant and would not have become apparent even if the entrant had exercised reasonable care; and

(b)the occupier was actually aware of the defective state or condition of the land and failed to give a warning to the entrant that should reasonably have been given in the circumstances of the case.

(2) A warning given by an occupier of land to a person who secures permission to enter the land on behalf of other persons is taken to have been given also to the other persons.

(3) This section applies to land classified by regulation as land to which this section applies unless the land is subject to a recreational access agreement relevant to the circumstances of the case.

(4) The section prevails over the ordinary law of occupier's liability to the extent of any inconsistency.

Recreational access agreement

5. (1) An occupier of land to which this section applies may enter into an agreement under this section (a recreational access agreement).

(2) A recreational access agreement—

(a)is an agreement made with one of the following (an "authority")—

(i)the State;

(ii)a council or other local government body;

(b)must state that it is made under the provisions of this section; and

(c)must either—

(i)state that the agreement covers all recreational users of the land; or

(ii)define the class of recreational users covered by the agreement.

(3) If a recreational access agreement is in force in relation to land—

(a)occupier's liability to a recreational user of the land for personal injury sustained while engaged in recreational activities envisaged by the agreement attaches to the authority with which the agreement was made as if the authority were the occupier of the land; and

(b)any question about the existence or extent of any such liability is to be determined (subject to paragraph (a)) in accordance with the ordinary law of occupier's liability; and

(c)an occupier of the land is (subject to subsection (4)) exempt from any such liability.

(4) An authority that is liable to a recreational user of the land under subsection (3) may recover an indemnity from the occupier if—

(a)the occupier misrepresented the state or condition of the land or failed to disclose, before entering into the recreational access agreement, latent defects in the state or condition of the land of which the occupier was then aware; or

(b)in the case of a defect of which the occupier becomes aware after the making of the recreational access agreement—the occupier failed to disclose the defect to the authority within a reasonable time.

(5) This section applies to land classified by regulation as land to which this section applies.

Regulations

6. The Governor may make regulations for the purposes of this Act.

By Authority: J. D. Ferguson, Government Printer, South Australia

 


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