A recent case highlights the fact that acts committed with intent to cause injury or death do not fall under the provisions of the Civil Liability Act.

The Civil Liability Act (CLA) allows providers of “recreational services” to exclude their liability in negligence, in some circumstances, by installing an appropriately worded risk warning sign. In addition they can, in some circumstances, exclude some terms implied by the Trade Practices Act (TPA) such as the term of a contract that services will be provided with due care and skill.

These provisions empower a provider of recreational services to significantly reduce their potential liability for negligence or breaches of the TPA. However they do not apply where a person is injured as a result of an act that is committed with intent to cause injury or death. Such an act is known as an intentional tort.

This exception has been recently considered in McCracken v Melbourne Storm Rugby League Football Club and Others (2005). The case concerned a rugby league game between Melbourne Storm and West Tigers during which two Melbourne Storm players tackled West Tigers player Jarrod McCracken causing him injury and trauma.

It was argued in this case that the provisions of the CLA did not apply because the tackle was an intentional tort.   The Court recognised that there is “scope for truly accidental error” but held that the tackle in this case was an act committed with intent to cause injury or death and accordingly that the provisions of the CLA did not apply.

This case illustrates that in cases where an injury occurs as a result of an intentional tort any steps that have been taken to reduce liability under the CLA will not prevent liability in negligence and in addition the implied terms in the TPA cannot be excluded.

If you are a provider of recreational services and would like advice on how to significantly reduce your potential liability for negligence or breaches of implied terms of the Trade Practices Act and Fair Trading Act please contact Katrina Reye on (02) 49076318 or by email at katrina.reye@harriswheeler.com.au