South Australian Numbered Acts

STATUTES AMENDMENT AND REPEAL (AUSTRALIAN CONSUMER LAW) ACT 2010 (NO 23 OF 2010) - SECT 12

12—Substitution of section 42

Section 42—delete the section and substitute:

42—Recreational services

        (1)         Subject to this section, a term of a contract for the supply of recreational services by a person (the "supplier") to a consumer may exclude, restrict or modify a guarantee that would otherwise have been implied in the contract under section 60 or 61 of the Australian Consumer Law.

        (2)         Subsection (1) applies only if—

            (a)         the exclusion, restriction or modification contained in the term is limited to excluding, restricting or modifying the liability of the supplier for any personal injury suffered by the consumer or another person for whom or on whose behalf the consumer is acquiring the services (a "third party consumer ); and

            (b)         the term contains the prescribed particulars and is in the prescribed form; and

            (c)         the term is brought to the attention of the consumer and any third party consumer prior to the supply of the services; and

            (d)         the consumer agrees to the term in the prescribed manner; and

            (e)         a statement containing any other information prescribed by regulation is made available to the consumer and any third party consumer in accordance with the requirements prescribed by regulation.

        (3)         Subsection (1) does not operate to exclude, restrict or modify the liability of the supplier for damages for any significant personal injury suffered by the consumer or any third party consumer if it is established (by applying the general principles set out in section 34 of the Civil Liability Act 1936 ) that the reckless conduct of the supplier caused the injury.

        (4)         A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void if it purports to indemnify, or has the effect of indemnifying, a person who supplies recreational services in relation to any liability that may not be excluded, restricted or modified under this Act or any other Act or law.

        (5)         Subsection (4) does not apply in respect of a contract of insurance.

        (6)         The Commissioner must publish information setting out the rights of consumers in relation to contracts for the supply of recreational services on a website determined by the Commissioner.

        (7)         In this section—

"conduct" includes any act or omission;

"personal injury" means bodily injury and includes—

            (a)         mental and nervous shock; and

            (b)         death;

"reckless"—a person's conduct is reckless if the person—

            (a)         is aware, or should reasonably have been aware, of a significant risk that his or her conduct could result in personal injury to another; and

            (b)         engages in the conduct despite the risk and without adequate justification;

"recreational services" means services that consist of participation in—

            (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;

"significant" means not nominal, trivial or minor.