By Shannah Snowball, Volunteer at the Arts Law Centre, with supervision from Simon Etherington, Solicitor at Arts Law Centre in 2003
First ART+law March 2003
Across Australia there has been much community concern about civil liability claims and the difficulties in obtaining affordable public liability insurance. The law has become perhaps overly generous toward people claiming compensation. This, combined with the events of September 11 and the collapse of Enron in America and HIH in Australia, contributed to a crisis which in some cases made it impossible to obtain public liability insurance. In response to this concern, State governments have passed or proposed legislation designed to limit liability and improve the affordability and availability of public liability insurance.
Situation in New South Wales
NSW is the first jurisdiction to have responded, which it did by enacting the Civil Liability Act 2002 (NSW) last year. This Act limits the likelihood of people being found liable when others are injured and also the extent of damages which may be payable.
One of the most important legal changes for the art sector relates to people participating in recreational activities. The Act provides for two new ways that risk can be transferred to the participants in pursuits or activities engaged in for
enjoyment, relaxation or leisure. First, you can limit your potential liability by giving an oral or written risk warning to participants (or their parents). A risk warning can be given by way of a sign or other means and it must warn people of the general risks involved in participating in the activity. Second, you can include a term in a contract between you and participants in the activity, which excludes, restricts or modifies your liability to participants. That is, you can get participants to agree that they will be responsible for their own safety and wellbeing and that you will not be held responsible if something goes wrong.1 Also, you will not be liable for harm suffered by participants from obvious risks of dangerous recreational activities.
So, if you plan to hold an event in NSW involving public participation, such as a festival, performance, workshop, concert, film or art showing, consider how you may be able to rely on the new law to protect yourself from being sued.
Another important change for the arts sector, where so much work is done by volunteers, is that volunteers are now protected from liability provided they are working for a body corporate, religious organisation or government authority and they are acting within the scope of their authorised activities.
Otherwise, the general theme of the new legislation is to place more responsibility on people for their own actions and to give more protection to people who are trying to do the right thing. For instance, it will now be harder for someone to claim compensation for injuries they suffer while they are intoxicated by drugs or alcohol.
What about the rest of Australia?
The other states are working towards enacting their own similar legislation and they are currently at different stages in the legislative process.2
1 However the exclusion must not be broader than that allowed under ss 68B and 74 Trade Practices Act 1974 (Cth) or else it will be void and of no effect.
2 The relevant Bills for each State are: Civil Liability Bill 2002 (QLD), Wrongs and Other Acts (Public Liability Insurance Reform) Bill 2002 (VIC), Civil Liability Bill 2002 (WA), Wrongs Liability and Damage for Personal Injuries) Amendment Act 2002 (SA), The Consumer Affairs and Fair Trading (Amendment) Bill 2002 (NT), Civil Law (Wrongs) Bill 2002 (ACT), Civil Liability Bill 2002 (TAS).
