Western Australian Current Acts Western Australian Current Acts (1) Subject to this
section, a person (the defendant ) does not owe a duty of care to another
person who engages in a recreational activity (the plaintiff ) to take care in
respect of a risk of the activity if the risk was the subject of a risk
warning to the plaintiff.
(2) If a child suffers
harm, the defendant may rely on a risk warning to a parent of the child if the
parent is not an incompetent person —
(a)
whether or not the child was accompanied by the parent; and
(b)
whether or not the child was under the control of the parent.
(3) If a child suffers
harm, the defendant may rely on a risk warning to another person who is not a
parent of the child if —
(a) the
other person is not an incompetent person; and
(b)
either —
(i)
the child was accompanied by that other person; or
(ii)
the child was under the control of that other person.
(4) For the purpose of
subsections (1), (2) and (3), a risk warning to a person in relation to a
recreational activity is a warning that is given in a manner that is
reasonably likely to result in people being warned of the risk before engaging
in the recreational activity.
(5) The defendant is
not required to establish that the person received or understood the warning
or was capable of receiving or understanding the warning.
(6) A risk warning can
be given orally or in writing (including by means of a sign or otherwise).
(7) A risk warning
need not be specific to the particular risk and can be a general warning of
risks that include the particular risk concerned (so long as the risk warning
warns of the general nature of the particular risk).
(8) A defendant is not
entitled to rely on a risk warning unless it is given by or on behalf of the
defendant or by or on behalf of the occupier of the place where the
recreational activity is engaged in.
(9) A defendant is not
entitled to rely on a risk warning if it is established (on the balance of
probabilities) that the harm concerned resulted from a contravention of a
written law, or a law of the Commonwealth, that establishes specific practices
or procedures for the protection of personal safety.
(10) A defendant is
not entitled to rely on a risk warning to a person to the extent that the
warning was contradicted by any representation as to risk made by or on behalf
of the defendant to the person.
(11) A defendant is
not entitled to rely on a risk warning if the plaintiff was required to engage
in the recreational activity by the defendant.
(12) A defendant is
not entitled to rely on a risk warning if it is established (on the balance of
probabilities) that the harm concerned resulted from an act done or omission
made with reckless disregard, with or without consciousness, for the
consequences of the act or omission.
(13) A defendant is
not entitled to rely on a risk warning to an incompetent person.
(14) The fact that a
risk is the subject of a risk warning does not of itself mean —
(a) that
the risk is not an obvious risk or inherent risk of an activity; or
(b) that
a person who gives the risk warning owes a duty of care to a person who
engages in an activity to take precautions to avoid the risk of harm from that
activity.
(15) This section does
not limit or otherwise affect the effect of a risk warning in respect of a
risk of an activity that is not a recreational activity.
(16) In this section
—
child means a person who has reached 16 years but
is under 18 years of age;
incompetent person means a person who is under 18
years of age or who, because of a physical or mental disability, lacks the
capacity to understand the risk warning.
[Section 5I inserted: No. 58 of 2003 s. 8.]