Dangerous Recreational Activities & Obvious Risks

Under Queensland compensation law, if you are injured whilst participating in a "dangerous recreational activity" you may be refused compensation for that injury if it has been caused by an "obvious risk" inherent in that activity.

What is a dangerous recreational activity?

In Queensland, a “dangerous recreational activity” is one that involves a significant degree of risk of suffering physical harm.

Under section 18 of the Civil Liability Act 2003 (QLD) (“CLA”) defines a dangerous recreational activity as “an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person”.

Under section 19 of the CLA, a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by a person.

What determines a dangerous recreational activity?

The Court uses the following to determine if the activity can be considered a “dangerous recreational activity”:

1. Do you think the activity engaged in is for enjoyment, recreation or leisure?
2. Does the activity involve a significant risk of harm?
3. Was it risky activity that caused the injury?
4. Is the activity a type that Courts already recognised as a dangerous recreational activity?
5. Was the dangerous recreational activity that caused the injury an obvious risk for a person in the injured person's position.

For example, activities that could be considered a dangerous recreational activity may include:

1. Horse riding;
2. Flying a plane (not for work purposes);
3. Playing a high contact sport;
4. Diving into an uncertain depth of water;
5. Hunting, particularly at night; or
6. BMX riding, etc.

These activities all involve a significant risk of harm that is considered obvious to the person participating.

General Example – Boxing

A boxing match may be considered a dangerous recreational activity, and a boxer injured from a punch thrown in the fight would not be entitled to claim in relation to such injury as punching and being punched are inherent aspects of the sport.

However, if the injury results from a defective stool that the boxer falls from in between rounds, then the injury has not resulted from an “obvious risk” associated with the dangerous activity of boxing.

Instead, the defect in the stool has caused the injury, and the boxer may be entitled to a claim, if they can establish that it was a result of someone else’s negligence.

Case Example – Tubing behind a boat

It must be noted that although certain activities may appear to be dangerous recreational activities, the Court will consider the relevant facts of each claim to determine if the defence is available.

For example, the matter of Glover v. Fuller (No 2) [2023] ACTSC 12, the Supreme Court held that where sufficient precautions are taken by the plaintiff, tubing behind a boat is not considered a dangerous recreational activity. Here, the facts were:

1. A 12-year-old boy was tubing behind a boat, with a life jacket on.
2. The boy had been given no instructions and had little experience tubing.
3. The boat was being driven by a sober adult.
4. The boy’s aunt was sitting in the boat facing him as an observer.
5. The activity was during daylight hours at a known water sports location and there were no adverse weather conditions present.

It was acknowledged that there was a risk of the tube flipping over while any person was being towed, and that if it did flip over there was some risk of physical harm. However, where he was wearing a life jacket and all the other precautions were being observed, the Court held that the activity did not fall within the definition of dangerous.

The Court also held that the risk of harm must also be obvious to the 12-year-old child. Given the boy’s age, lack of experience and lack of instruction provided, the risk of harm was not obvious to him.

Therefore, the plaintiff was successful, receiving an award for damages of $92,595.00.

Case Example – Oztag

In the case of Falvo v Australian Oztag Sports Associate & Anor [2006] NSWCA 17, the plaintiff was injured while playing touch rugby. The grounds which the plaintiff was injured on was covered in some areas in grass and, in other areas, sand had been used to fill in where grass no longer grew.

When running towards the opposition, the plaintiff stepped into a sandy area, in which his foot sank deeper into the ground, and his knee was injured.

The defendant local council unsuccessfully argued that the sport of touch rugby was a dangerous recreational activity. The Court held that a “dangerous recreational activity” cannot mean an activity involving everyday risks involved in games such as Oztag with no tackling and no risk of being struck by a hard ball.

However, the Court also held that this variation of surface was obvious to any player, in addition to the risks involved in playing non-contact sport, on surfaces of this standard. The Court noted that it is impractical to require sports grounds to have surfaces that are perfectly level and smooth, and to do so would incur significant costs.

Therefore, although Oztag was not considered a dangerous recreational activity, the plaintiff was not successful in establishing negligence.

How we can help

The Compensation Team at Wallace & Wallace Lawyers are experienced in all aspects of Compensation Law. If you have been injured participating in a recreational activity, we can assist you to determine if you are entitled to a claim for compensation.

If you are dissatisfied with your current representation, our experts can also offer a second opinion.

If you, or someone you know has been injured in a motor vehicle accident, at work, or due to someone else’s fault, or you want a second opinion, call us now on (07) 4963 2000 or contact us via our online contact form for practical legal advice on how you should proceed.