Edition 07/2002
Legislative
Changes To Help The Cause
Those
following developments in what is generally referred to as “the
liability insurance crisis” will be aware that legislative change
has been identified as one area that can help improve the situation.
As has been stated in previous editions of our Monthly Updates,
any action that has the effect of reducing the likelihood or quantum
of liability insurance claims will assist.
To facilitate appropriate changes in the current legislation both
federal and state governments have undertaken to work together so that
a meaningful outcome for all parties is achieved.
A
Press Release issued on 27th June 2002 from the office of
Senator the Hon. Helen Coonan, Minister for Revenue and the Assistant
Treasurer, advised that legislation to allow individuals to assume
their own risk when undertaking risky activities would be introduced
in to the Federal Parliament on that day (refer website http://assistant.treasurer.gov.au).
Quoting
directly from that press release, “…… the Commonwealth will be
making changes to the Trade Practices Act so that individuals are able
to waive their right to sue when undertaking risky recreational
activities. Although the
vast bulk of the law reform required to stabilise insurance premiums
must be undertaken by State and Territory jurisdictions, amending the
Trade Practices Act is a concrete step that the Commonwealth is able
to take. These measures
will assist operators of businesses such as adventure tourism and
sport, who are currently prevented from relying on waivers."
The
release went on to state that in allowing people to voluntary waive
their right to sue, it was important to achieve a balance between
protecting consumers and allowing them to take responsibility for
themselves.
The amendments will still allow injured consumers
to sue if they are the victims of gross negligence on the part of the
operator.
“Operators of adventure tourism and sport businesses must
still take the necessary precautions to run safe and responsible
businesses”, Senator Coonan said.
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These
amendments to Trade Practices legislation will put the onus on the
participant to accept that there is a risk of injury when
participating in sport and release the organisation involved from
liability if injury occurs, providing they have demonstrated a
reasonable level of responsibility in meeting their duty of care.
Most would say surely that is just common sense, however
judging by the legal actions taking place, and some of the judgments
being made, it would seem not all agree.
The
objective is that when this legislation is enacted waivers will offer
a more supportive legal defence to sporting organisations and the
like, and they will therefore become a more valuable risk management tool.
Previous IEA Sport Monthly Updates have provided advice in
regard to waiver wordings etc., but all organisations should now
review their use of waivers and receive legal advice on how they can
best be used and worded so as to maximise their effectiveness.
When
discussing the waiver issue it has been commented that players will
not sign them and participation numbers will suffer if signing is made
compulsory. This is a
risk - but measure this risk against the alternative.
How many participants will we have in ten years time if the
current trend of society to look for someone to blame in the event of
an unfortunate accident continues unabated? We all have a vital role to play in remedying this situation
- changing attitudes is not easy and commitment will be required.
As
stated earlier in this article, many would share the opinion that
voluntary assumption of risk by participants in sporting events is
just common sense, and common law actions must surely take this into
account. It is refreshing
that Senator Coonan announced the make-up of a high level panel to
review the law of negligence in a Press Release dated 2nd
July 2002 (again refer to website http://assistant.treasurer.gov.au).
Continued
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