RECREATIONAL SERVICES (LIMITATION OF LIABILITY) BILL 2002

Short title

1. This Act may be cited as the Recreational Services (Limitation of Liability) Act 2002.

Commencement

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

Interpretation

3. In this Act—

"code" includes an amendment to a code;

"consumer" means a person (other than a person who is not of full age and capacity) for whom a recreational service is, or is to be, provided;

"duty of care" means a duty to take care or to exercise skill (or both);

"personal injury" means bodily injury and includes—

(a)mental and nervous shock; and

(b)death;

"provider" in relation to a recreational service means a person who provides the service either on a commercial or a non-commercial basis;

"recreational activity" means—

(a)a sporting activity or a similar leisure-time pursuit; or

(b)any other activity that—

(i)involves a significant degree of physical exertion or physical risk; and

(ii)is undertaken for the purposes of recreation, enjoyment or leisure;

"recreational services" means any one or more of the following services:

(a)a service of providing facilities for participation in a recreational activity;

(b)a service of training a person to participate in a recreational activity or supervising, guiding, or otherwise assisting a person's participation in a recreational activity;

"registered code"—see section 4;

"registered provider"—see section 5.

Registration of code of practice

4. (1) A person (the proponent) may apply to the Minister for registration of a code of practice governing the provision of recreational services of a particular kind (defined in the code).

(2) Such a code must set out measures that a provider of recreational services of the relevant kind should (in the opinion of the proponent) take in order to ensure a reasonable level of protection for consumers.

(3) A code submitted for registration under this section must comply with the requirements of the regulations as to its form and content.

(4) Before registering a code, the Minister may require a proponent to obtain a report on its adequacy from a nominated person or association.

(5) The Minister may refuse to register a code if the Minister is not satisfied as to its adequacy or for any other reason.

(6) The Minister may, by notice in the Gazette—

(a)register a code under this section; and

(b)cancel the registration of a code if the Minister is not satisfied as to its adequacy or for any other reason.

(7) The Minister must ensure that the register of codes can be inspected at a website determined by the Minister.

(8) The Minister does not incur any liability for or in respect of a code in consequence of its initial or continued registration.

Registration of providers

5. (1) A provider may apply to the Minister to register an undertaking to comply with a registered code.

(2) An application for registration of an undertaking must be accompanied by the information required by regulation.

(3) The Minister may, by notice in the Gazette—

(a)register—

(i)the name of a provider giving the undertaking (a registered provider); and

(ii)the name or names in which the provider carries on business; and

(b)identify the code or codes to which the undertaking relates that govern the recreational services provided by the provider and, if there are more than one, the services to which each code applies.

(4) A registered provider may apply to the Minister—

(a)to vary the details of the registration; or

(b)to cancel the provider's registration.

(5) An application for variation or cancellation of an undertaking by a registered provider must be accompanied by the information required by regulation.

(6) The Minister may, by notice in the Gazette—

(a)vary the details of a provider's registration; or

(b)cancel a provider's registration.

(7) The Minister must ensure that the register of providers who have undertaken to comply with registered codes can be inspected at a website determined by the Minister.

(8) The Minister does not incur any liability for or in respect of a provider's initial or continued registration.

Duty of care may be modified by registered code

6. (1) A registered provider may enter into a contract with a consumer modifying the duty of care owed by the provider to the consumer so that the duty of care is governed by the registered code.

(2) Before entering into a contract under subsection (1), the registered provider must give the consumer the notice required by the regulations of the effect of the agreement.

(3) If a registered provider—

(a)provides recreational services gratuitously; and

(b)displays notices prominently, in a manner and form required by the regulations, notifying consumers that the registered provider's duty of care is governed by the registered code,

a consumer who avails himself or herself of the services is taken to have agreed to a modification of the provider's duty of care so that it is governed by the registered code.

(4) A registered provider must have a copy of the registered code available for inspection at any place of business at which the registered provider carries on business.

Maximum penalty:$5 000.

Expiation fee:$315.

Modification of duty of care

7. (1) If a consumer to whom this section applies suffers personal injury, the provider is only liable in damages if the consumer establishes that a failure to comply with the registered code caused or contributed to the injury.

(2) This section applies to a consumer—

(a)who has entered into an agreement with a registered provider modifying the provider's duty of care to the consumer; or

(b)who is taken to have agreed to a modification of the provider's duty of care under section 6(3).

Application of this Act

8. (1) This Act operates to modify a duty of care under any other Act or law in relation to liability for personal injury.

(2) However, this Act does not affect—

(a)a liability of a manufacturer of goods; or

(b)a liability in respect of the sale of goods; or

(c)criminal liability.

Other modification or exclusion of duty of care not permitted

9. A duty of care owed by a provider of recreational services to a consumer may not be modified or excluded in relation to liability for damages for personal injury except as provided by this Act.

Regulations

10. (1) The Governor may make regulations for the purposes of this Act.

(2) Without limiting the generality of subsection (1), the regulations may fix fees in respect of any matter under this Act and provide for their payment, recovery or waiver.

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

South Australian Bills

RECREATIONAL SERVICES (LIMITATION OF LIABILITY) BILL 2002