Liability in Recreational Activities and Businesses - What Providers Need to Know
Recreational activity providers – particularly in sectors such as tourism, sport and adventure experiences must carefully manage legal risk. In Australia, liability is primarily governed by consumer protection legislation including Australian Consumer Law (ACL) and State and Territory civil liability legislation.
Australian Consumer Law
Under the ACL, service providers must comply with consumer guarantees, including delivering services with due care and skill, ensuring they are fit for purpose, and providing them within a reasonable time.
While these guarantees generally cannot be excluded, section 139A of the ACL allows recreational providers to limit liability for injury or death through properly drafted waivers. These waivers must include specific wording and be clearly accepted by participants.
Importantly, liability cannot be excluded where harm results from reckless conduct, and providers still owe participants a duty of care.
Negligence and risk warnings
Providers may also face liability in negligence if they fail to take reasonable care to prevent harm. Although recreational activities often involve inherent risks, providers must still ensure:
Equipment is safe and properly maintained;
Staff are adequately trained; and
Activities are appropriately supervised.
Risk warnings are a key tool in managing liability. When clearly communicated, they can reduce or remove responsibility for disclosed risks. However, relying solely on “obvious risk” arguments is often insufficient, and courts expect risks to be clearly highlighted to participants.
Key takeaways
While waivers and risk warnings are valuable, they do not remove the obligation to operate safely. Providers should adopt a comprehensive risk management approach, including clear documentation, participant communication and robust safety practices.
How we can assist
We assist recreational activity providers with:
Drafting enforceable waivers and risk warnings;
Compliance with ACL;
Risk management and liability minimisation strategies; and
Reviewing operational practices and documentation.
If you require advice on reducing liability in your business’ activities, please reach out to:
Paul Gray
Principal
T 03 5225 5231 | M 0414 195 886
Epgray@ha.legal
Hugo Le Clerc
Senior Associate
T: 03 5225 5213 | M: 0438 089 334
E: hleclerc@ha.legal
Jemimah Fitzgerald
Lawyer
T 03 5225 5219
Ejfitzgerald@ha.legal
Prepared with the assistance of Charlotte Newman.
