Response to

							 Response to the Review of the Law
          of Negligence
                         (Terms of Reference 3(d), 3(f), 4, 5)




Prepared by Kathy Kingsford
Executive Officer
Queensland Outdoor Recreation Federation
Sports House, Cnr Castlemaine & Caxton Streets
MILTON QLD 4064
Ph: (07) 3369 9455
Fax: (07) 3369 9355
info@qorf.org.au




Signed:                                                Date: 6th August 2002…………
                               Executive Summary

The Queensland Outdoor Recreation Federation Inc (QORF) is recognised by the
Queensland Government as the peak body for outdoor recreation in Queensland. The
outdoor recreation industry, in broad terms, consists of all those enterprises that are
associated with the conduct of outdoor activities in a non-competitive environment.
The industry therefore includes:
     volunteer / community clubs and organisations
     commercial organisations
     education institutes (schools, universities, TAFE Colleges)
     personal and/or professional development enterprises
     adventure therapy and adventure-based counselling organisations
     recreation groups
     adventure tourism and ecotourism enterprises
     manufacturing / wholesale / retail outlets
Outdoor recreation therefore creates significant social, health and economic benefits
to Queensland.

There is evidence to suggest that the outdoor recreation industry was being affected
(either directly or indirectly) by increases in public liability insurance prior to the
collapse of HIH and the events of September 11th 2001. These increases have also
been accompanied over the past few years by an increasing incidence of restriction of
access to public lands for recreation due to fear of litigation. There are many reasons
for the increases in public liability insurance premiums that are not unique to this
industry. However, there are some reasons for increases in public liability premiums
that are specific to outdoor recreation/outdoor adventure including:
      reduction in the number of companies prepared to underwrite outdoor
        adventure activities, leading to a monopoly;
      the number of out of court settlements, thereby not allowing for some “grey
        issues” relevant to duty of care and negligence to be tested within the legal
        system. (This includes the duty of care of land managers over vast tracts of
        wilderness terrain);
      inability to access coverage for certain activities perceived to be high risk;
      inadequate statistical data upon which to make accurate assessment of risk;
      requirements of public landholders for holders of permits to have $10 million
        public liability cover.

Because of the variety of causes, a suite of strategies will be needed to deal with the
issue; some strategies may apply to a number of industries whilst some need to be
specific to outdoor recreation/outdoor adventure.          Those specific to outdoor
recreation/outdoor adventure could include:
     enhanced skills in risk management by organisations, enterprises and
        individuals;
     industry self regulation incorporating introduction of national Organisation
        Accreditation and national Registration of outdoor adventure leaders to ensure
        that activities are conducted in accordance with industry best practice;
     development of appropriate statutory mechanisms including appropriate
        mechanisms to protect landholders against litigation from accidents/injuries
        caused by natural hazards where persons are choosing to participate in
        outdoor adventure activities in natural/wilderness areas (legislation, including
        recreation user provisions, is in place in the USA, Canada, UK, Republic of
        Ireland);




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       better collection, collation and analysis of statistics relevant to participation,
        incident/accident rate, claims rate and differentiation between independent and
        guided/led activities;
       improved knowledge of the outdoor recreation/outdoor adventure industry by
        brokers and underwriters in order to better determine the level of risk presented
        by different activities and situations;
       bulk buying schemes, particularly of benefit to small organisations and
        enterprises.

Additional statutory mechanisms, such as the amendments to the Trade Practices Act
1974, changes to limitation periods and options to limit the liability of not-for-profit
organisations are welcome but must include consideration of a number of factors,
including:
    (a) the common law rights of an individual to take legal action in instances of
          gross negligence;
    (b) clear differentiation between the risks inherent in an activity itself (eg, snake
          bites, unpredictable weather conditions, freak rock falls) and risks associated
          with negligence on the part of the person who is providing the service;
    (c) the requirement that volunteers need to be adequately trained to conduct
          activities and acknowledgement of the fact that the skill required and the duty
          of care is the same, irrespective of whether a person is a paid employee or a
          volunteer in a not-for-profit organisation;
    (d) the potential for delayed onset of injury symptoms after a proposed limitation
          period and the ability to accurately determine the long term implications of
          injuries within that limitation period.
    (e) the potential for delayed onset of injury symptoms after a proposed limitation
          period and the ability to accurately determine the long term implications of
          injuries within that limitation period.

Introduction of requirements to ensure that “generally accepted practice” of the
profession at the time of the negligent act or omission be determined and applied is
particularly important in for the outdoor recreation/outdoor adventure industry. Current
accepted practice is often significantly different from what would have been acceptable
five years ago as technology improves and community expectations with respect to
safety and risk management changes.

A comprehensive analysis of issues associated with duty of care, negligence and the
relationship between risk and the places in which outdoor recreation/outdoor
adventure activities occur is contained in the attached Report: Occupiers and Liability
to Recreational Users.




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                   Response to Terms of Reference:

3(d)
Options for a requirement that the standard of care in professional negligence
matters accords with the generally accepted practice of the relevant profession
at the time of the negligent act or omission.

The outdoor adventure industry is a relatively new industry and has seen a significant
growth in the last ten years. Coupled with this growth, there has been a concerted
attempt by the industry to develop “national standards”. This commenced as early as
1992 with the National Outdoor Recreation Leadership Development (NORLD)
process. Work is ongoing to define “generally accepted practice” and what would have
been acceptable five years ago, in many areas would not now be considered
acceptable, as technology improves and community expectations increase with
respect to safety and risk management. It is therefore essential in matters of
professional negligence that the generally accepted practice of the profession at the
time of the negligent act or omission be determined and applied. In some instances
and situations, it will be difficult to determine what was “accepted practice” however
QORF is supportive of a requirement to, as a minimum, apply practices that were
relevant at the time of the negligent act or omission.

However, in considering use of generally accepted practice, it must also be applied in a
specific context; what is accepted practice in one type of circumstance may not be in
another. Accepted practice may differ depending on the goals of the client or the
program, the location, the weather, the type of client group, etc. Therefore, any
consideration of a requirement to apply generally accepted practice needs to
incorporate the ability to apply the practice appropriate to the particular situation and
context. That is, the legal tests of what constitutes adequate duty of care need to be
able to adjust to the circumstances.

This raises another issue, which is the use of “expert” witnesses. In applying generally
accepted practice to determine the standard of care, QORF believes there should be
consideration of the development of criteria for defining or establishing “expert”
witnesses. Too often we have seen persons who have skills, knowledge and
experience in a particular area used as “expert witnesses” when in fact their skills,
knowledge and experience (and their knowledge of generally accepted practice) may
not be relevant in the context or situation at hand.

3(f)
Options for exempting or limiting the liability of eligible not-for-profit
organisations for damages claims for death or personal injury

Volunteerism plays an integral role in outdoor recreation. Not-for-profit organisations
(frequently involving primarily volunteers) contribute significantly to the social capital
through activities delivered by local clubs (eg, trail horse riding clubs, bushwalking
clubs) and community and church groups (eg, Scouts, Guides, Royal Rangers).

Whilst the concept of limiting the liability of eligible not-for-profit organisations for
damages claims for death or personal injury sounds attractive, this must be tempered
with the fact that volunteers need to be adequately trained to conduct activities. The
skill required is the same, as is the duty of care when conducting outdoor adventure
activities, irrespective of whether a person is a paid employee or a volunteer in a
not-for-profit organisation. The volunteer, in accepting responsibility for conducting an
activity, accepts responsibility for their own competency to do so. QORF would NOT


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BE supportive of exempting the liability of not-for-profit organisations for damages
claims for death or personal injury in instances associated with inadequate training or
poor risk management. We believe that deliberately exempting the liability of
not-for-profit organisations may result in decreased standards within the industry.

The liability of individuals associated with not-for-profit organisations may be limited
through the introduction of legislation that provides members of volunteer
organisations with qualified immunity from personal liability for negligence with the
onus being put back on the organisation they were volunteering for (eg, Volunteers
Protection Act which came into effect in South Australia on January 15th 2002). This
increases the requirement on the not-for-profit organisation to ensure that adequate
risk management practices and procedures (including sufficient training) are
developed and implemented.

4.
Review of the interaction of Trade Practices Act 1974 (TPA) (as proposed to be
amended) with the common law principles applied in negligence (particularly
with respect to waivers and the voluntary assumption of risk)

Section 74 of the TPA states that where a contract exists for the supply of a service,
there is an implied warranty that the service will be rendered with due care and skill
and that any materials supplied in connection with those services will be reasonably fit
for the purpose for which they are supplied. As it currently stands, “Section 68 of the
TPA does not allow providers of goods and services to contract out of statutory
warranties established by the TPA, such as that under section 74 to provide services
with due care and skill”. (TPA Amendment outline)

The amendment “will permit self assumption of risk by individuals..... and will allow
them to waive their right under the TPA to sue the business providing the activity,
should they suffer personal injury as a consequence of the service providers failure to
supply the services with due care and skill”. (TPA Amendment outline)

Participation in an outdoor adventure activity should involve acceptance of all the risks
inherent in the activity itself (eg, snake bites, unpredictable weather conditions, freak
rock falls) but NOT the risk that someone who is providing the service is negligent.

Amendments to the TPA should address the ability to voluntarily assume risk inherent
in the participation in the sport or recreation activity, but should not exempt negligent
behaviour on the part of a service provider. That is, the TPA amendments should
reinforce the principle of volenti no fit injuria (voluntary assumption of risk), clarifying
the circumstances and requirements for:
    (a) providing full and informed knowledge of the actual danger being confronted
    (b) the participant/entrant acknowledging that they agree to incur that risk.

This raises the complicating factor of the role of an occupier or service provider to
manage the risk and the extent to which that management should be undertaken, or is
even possible. In particular, the type of place or location has a profound affect on
naturally occurring hazards. For example:
    In wild and natural places the naturally occurring hazards are uncontrolled or
        unmanaged – either through a policy decision not to do so or because it is not
        practical or feasible or affordable or because of the potential negative effects
        on other values or uses of the area. People voluntarily choose to visit / actively
        seek these places, at least in part, because of the wild and natural attributes of
        such places. For example, lightning is a naturally occurring hazard. Lightning

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        can occur anywhere clouds occur including remote deserts, forests, rivers,
        seas, clifflines, etc. Usually, there are no on-site management staff in wild and
        natural places. Visitors and recreational users expect to rely on their own skill,
        judgement, experience, fitness, strength and equipment to identify and
        manage the risks they encounter.
       In built, designed, developed, contrived places recreational visitors could
        reasonably expect that the naturally occurring hazards are controlled and/or
        managed. For example, lightning occurs on golf courses. Again, lightning is a
        naturally occurring hazard. Golfers may be exposed to the possibility of being
        struck by lightning when storms are near the golf course but golf courses have
        staff on site to manage and administer the golf course. Golfers may reasonably
        expect to be warned of approaching storms and the consequent threat of
        lightning strikes.

Therefore, in the proposed amendments to the TPA, QORF believes that there should
be more careful consideration of the term “recreational services”. It may be necessary
to examine the relationship between the type of recreational activity or service and the
type of place or location. For example, climbers on a wild, remote and naturally
occurring rock face must respond to the circumstances in that climb in the conditions at
the time of the climb. The risk and the service provider’s ability to address the risk in
this outdoor adventure activity in this type of place is completely different from a
situation where a person is rockclimbing at a quarry or similar site in a residential area
where the local council has encouraged its use for rockclimbing and in fact has
provided facilities and enhanced the area to attract climbers.

Similarly, there is a degree of unpredictability in bushwalking in relatively undisturbed
native forests because many of the components of natural bushland (eg. terrain,
animal behaviour, presence or absence of various species, weather, climate, etc)
cannot be controlled or precisely predicted by humans and cannot be totally managed
by a service provider. Unpredicted events and discoveries to which the bushwalker
and the service provider must react or respond are part of the intrinsic value of the
experience of bushwalking

The difficulty for the service provider is to determine the extent of their duty of care.
Whilst clients may waive their rights to sue if they voluntarily assume the risk inherent
in activities, a “grey area” still exists with respect to the degree to which the service
provider should or could manage that inherent risk and could therefore be the subject
of litigation under Common Law. Whilst being supportive of the concept of enabling
self assumption of risk by individuals through the proposed modifications to the TPA,
QORF believes that:
     (a) the term “recreational services” may need to be further clarified to incorporate
         the concept of differing levels of duty of care dependant on the place;
     (b) there needs to be clarification that the proposed amendments do not remove
         the common law rights of an individual to take legal action in instances of gross
         negligence.

A comprehensive analysis of issues associated with duty of care, negligence and the
relationship between risk and the places in which outdoor recreation/outdoor
adventure activities occur is contained in the attached Report: Occupiers and Liability
to Recreational Users.




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5.
Options for a limitation period of 3 years for all persons, while ensuring appropriate
protections are established for minors and disabled persons.

QORF is supportive of the notion of reducing limitation periods as one strategy to
reduce insurance premiums. The speculation by insurers of both the potential for
payouts in years to come, as well as the payments that would be acceptable to the
community at that time, based on current trends has without doubt contributed to
increasing premiums. However, any changes in limitation period need to be
considered along with the other changes currently being adopted at both state and
federal level, as these changes may affect these trends and thereby negate the need
to reduce limitation periods.

In considering options for a limitation period of three years, QORF also believes that
the following need to be considered and evaluated:
    (a) the potential for delayed onset of injury symptoms (ie, what medical evidence is
         there to suggest that all injuries, both physical and psychological) have
         presented within three years
    (b) the ability to accurately determine the long term implications of injuries which
         present within 3 years (ie, short and long term implications of injuries)
Medical data needs to be reviewed to determine the above, before a limitation period is
established.




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