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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Adventure Activities Protection Act 2002
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Definitions 2
4. Objects of the Act 3
5. Application of the Act 4
6. Regulations 4
7. Delegation 5
PART 2--ADVENTURE ACTIVITY OPERATORS 6
8. Application for approval as an Operator 6
9. Approval as an Operator 6
10. Provision relating to approvals 8
11. Variation of approval 9
12. Revocation of approval 10
13. Time revocation takes effect 10
PART 3--DAMAGES IN RESPECT OF DEATH OR SERIOUS
INJURY 11
14. Actions for damages 11
15. Determination by the Insurer 13
16. Entitlement to bring proceedings for damages 16
17. Assessment of impairment 18
18. Where no Insurer 19
__________________
SCHEDULE--Activities which may be specified as an Operator's
approved adventure activities 20
ENDNOTES 21
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PARLIAMENT OF VICTORIA
Initiated in Council 14 May 2002 by the Hon. W. Forwood
A BILL
to provide for the approval of operators of certain adventure activities,
to restrict the circumstances in which damages may be recovered in
respect of the injury or death of a participant in certain adventure
activities and for other purposes.
Adventure Activities Protection Act
2002
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Act is to regulate the
compensation of persons who die or suffer injury
5 arising out of, or in the course of, their voluntary
participation in adventure activities which by their
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Adventure Activities Protection Act 2002
Act No.
PART 1--PRELIMINARY
s. 2
nature involve inherent risk of injury to
participants, particularly where the physical or
environmental challenge or the element of risk
form part of the participant's enjoyment of the
5 activity.
2. Commencement
This Act comes into operation on 1 July 2002.
3. Definitions
In this Act--
10 "adventure activity" means any Operator's
approved adventure activity conducted by or
under the supervision or control of that
Operator in the course of the Operator's
business, to the extent that such activity is
15 engaged in in Victoria;
"adventure contract" means a contract pursuant
to which an Operator is to supply goods or
services to a participant in respect of an
Operator's approved adventure activity;
20 "injury" means physical or mental injury;
"Minister" means Minister for Tourism or the
Minister's delegate;
"Operator" means a person approved as an
Operator under Part 2;
25 "Operator approval" means an approval as an
Operator granted by the Minister under
Part 2, as varied by the Minister from time to
time;
"Operator's approved tourism activity" means
30 any activity which the Minister specifies as
an Operator's approved adventure activity in
an Operator approval for the purposes of the
Operator the subject of that approval;
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PART 1--PRELIMINARY
s. 4
"participant" means any person who takes part,
or agrees to take part, in an adventure
activity, whether or not the person provides
any consideration to the Operator in
5 exchange for his or her participation in the
activity, and "participate" and
"participation" have the corresponding
meanings;
"prescribed" means prescribed by the
10 regulations.
4. Objects of the Act
The objects of this Act are--
(a) to recognise and accredit operators of
adventure activities and thereby improve the
15 safety of participants in adventure activities;
and
(b) to ensure that the costs of compensation for
injuries arising out of or in the course of
adventure activities are contained so as to
20 minimise the burden on Victorian
businesses; and
(c) to reduce the social and economic costs to
the Victorian community of compensation
for injuries arising out of or in the course of
25 adventure activities; and
(d) to entitle only those persons (or the
beneficiaries of those persons) who die or
suffer serious injury within the meaning of
Part 3 to bring proceedings for compensation
30 for death or injuries arising out of or in the
course of the person's participation in
adventure activities.
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PART 1--PRELIMINARY
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5. Application of the Act
Subject to the provisions of this Act, this Act
applies (notwithstanding anything to the contrary
in any other Act or law) to and in respect of any
5 adventure contract.
6. Regulations
(1) The Governor in Council may make regulations
for or with respect to prescribing--
(a) forms to be used for the purposes of this Act;
10 (b) fees for the purposes of this Act;
(c) the activities which may be specified as an
Operator's approved adventure activity;
(d) the terms and conditions which apply to
Operator approvals granted under Part 2;
15 (e) any matter which is authorised or required to
be prescribed for carrying out or giving
effect to this Act.
(2) Regulations made under this Act--
(a) may be of general or of specifically limited
20 application; and
(b) may differ according to differences in time,
place or circumstance; and
(c) may apply, adopt or incorporate, with or
without modification, any matter contained
25 in any document, code, standard, rule,
specification or method formulated, issued,
prescribed or published by any authority or
body as formulated, issued, prescribed or
published at the time the regulation is made
30 or at any time before the regulation is made;
and
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PART 1--PRELIMINARY
s. 7
(d) may impose a penalty not exceeding
10 penalty units for any contravention of the
regulations.
7. Delegation
5 The Minister may, by instrument, delegate to any
person any function or power of the Minister
under this Act, other than this power of
delegation.
__________________
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Adventure Activities Protection Act 2002
Act No.
PART 2--ADVENTURE activity OPERATORS
s. 8
PART 2--ADVENTURE ACTIVITY OPERATORS
8. Application for approval as an Operator
(1) A person may make application in writing to the
Minister for an Operator approval.
5 (2) An application under sub-section (1) shall
describe the nature of the proposed adventure
activities and shall be--
(a) in the prescribed form (if any); and
(b) accompanied by the prescribed information
10 (if any); and
(c) accompanied by the prescribed fee (if any).
9. Approval as an Operator
(1) Where an application is made by a person under
section 8, the Minister may--
15 (a) grant an Operator approval on terms and
conditions determined by the Minister, if the
Minister considers it appropriate to grant
such approval having regard to the matters
set out in sub-section (3); or
20 (b) refuse to grant an Operator approval.
(2) The Minister must, within 28 days of receiving an
application pursuant to section 8--
(a) grant the applicant an Operator approval; or
(b) advise the applicant in writing of the refusal
25 to grant an Operator approval.
(3) In determining whether it is appropriate to grant a
person an Operator approval, the Minister shall
have regard to the following matters--
(a) the nature of the proposed adventure activity
30 offered, or proposed to be offered, to the
public by the applicant; and
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PART 2--ADVENTURE activity OPERATORS
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(b) whether the proposed adventure activity
comes within the activities listed in the
Schedule or any other activity prescribed for
the purposes of this section from time to
5 time; and
(c) whether the proposed adventure activity
involves inherent risk of injury to the
participant in respect of, but not limited to--
(i) the forces of nature; and
10 (ii) the behaviour of animals; and
(iii) the terrain, location or environment in
which the activity is to be conducted;
and
(iv) the physical ability of the participant;
15 and
(v) the equipment to be used by the
participant; and
(d) the experience, training and qualifications of
the person or persons who are to conduct or
20 supervise the conduct of the proposed
adventure activity on behalf of the applicant;
and
(e) the risk management procedures which the
applicant has in place, or proposes to put in
25 place, in respect of the proposed adventure
activity.
(4) The Minister shall specify in each Operator
approval the Operator's approved adventure
activities.
30 (5) In determining whether to specify an activity as an
Operator's approved adventure activity under sub-
section (4), the Minister shall have regard to the
matters set out in sub-section (3)(a) to (e).
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PART 2--ADVENTURE activity OPERATORS
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(6) It shall be a condition of each Operator approval
granted by the Minister that the Operator approval
will only take effect from--
(a) the date on which the approval is granted; or
5 (b) the date on which the applicant obtains
public liability insurance in respect of the
Operator's approved adventure activities in
an amount no less than the amount
prescribed from time to time--
10 whichever is later.
(7) An Operator approval--
(a) is subject to the prescribed terms and
conditions and to such terms and conditions
as the Minister determines from time to time;
15 and
(b) has effect, unless sooner revoked, for the
period of five years after the approval is
given.
10. Provision relating to approvals
20 (1) An approval as an Operator--
(a) may take effect from a date after the
approval is given as is specified in the
approval;
(b) may be subject to compliance with a
25 condition precedent determined by the
Minister.
(2) If any of the requirements for approval as an
Operator cease to be met during the period of
approval, the approval as an Operator may be
30 revoked in accordance with this Part.
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PART 2--ADVENTURE activity OPERATORS
s. 11
11. Variation of approval
(1) The Minister may vary an Operator approval on
the application of an Operator to--
(a) add one or more activities to the Operator's
5 approved adventure activities; or
(b) remove one or more activities from the
Operator's approved adventure activities; or
(c) otherwise vary the terms and conditions on
which the Operator approval is granted.
10 (2) An application under sub-section (1) must be in
the prescribed form and accompanied by the
prescribed information and the prescribed fee.
(3) Where an application is made by an Operator
under sub-section (1), the Minister may--
15 (a) vary the Operator approval subject to terms
and conditions determined by the Minister, if
the Minister considers it appropriate to so
vary the Operator approval, having regard to
the matters set out in paragraphs (a) to (e) of
20 section 9(3); or
(b) refuse to vary the Operator approval.
(4) The Minister must, within 28 days of receiving an
application pursuant to sub-section (1)--
(a) grant the variation requested by the
25 application, whether in whole or in part,
subject to the terms and conditions (if any)
determined by the Minister; or
(b) advise the applicant in writing of the refusal
to grant the variation.
30 (5) The variation of an Operator approval shall--
(a) take effect when notice of the decision is
given to the Operator or on any later date
that may be specified in the notice; and
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PART 2--ADVENTURE activity OPERATORS
s. 12
(b) continue to have effect for the term of the
existing Operator approval under section
9(6), subject to any further variation under
this section.
5 12. Revocation of approval
(1) The Minister may revoke an Operator approval by
notice in writing given to the Operator or by
publication of the notice in the Government
Gazette if--
10 (a) the Operator by notice in writing given to the
Minister, requests that the Operator approval
be revoked; or
(b) the Operator has failed to comply with this
Act or the regulations or with any terms or
15 conditions to which the Operator approval is
subject.
(2) The Minister shall not revoke an Operator
approval under sub-section (1) unless the Minister
has given not less than 7 days' notice in writing to
20 the Operator of the intention to revoke the
Operator approval together with reasons and has
stated in the notice that the Operator may, within
7 days after receiving the notice, make a
submission to the Minister.
25 13. Time revocation takes effect
The revocation of an Operator approval takes
effect from and including the day after the day on
which--
(a) the notice of the revocation is given to the
30 Operator; or
(b) the notice is published in the Government
Gazette--
whichever is earlier.
__________________
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Act No.
PART 3--DAMAGES IN RESPECT OF DEATH OR SERIOUS INJURY
s. 14
PART 3--DAMAGES IN RESPECT OF DEATH OR SERIOUS
INJURY
14. Actions for damages
(1) A person shall not recover any damages in any
5 proceedings in respect of the injury or death of a
participant arising out of or in the course of an
adventure activity, where the participant
participated in that adventure activity on or after
the commencement of this Act except in
10 accordance with this Part.
(2) Where a person is entitled to compensation in
respect of injury or death under any of the
following legislation, the provisions of that
legislation shall prevail over the provisions of this
15 Act to the extent of any inconsistency--
(a) the Transport Accident Act 1986; or
(b) the Accident Compensation Act 1985; or
(c) Part V of the Country Fire Authority Act
1958; or
20 (d) Division 6 of Part II of the Education Act
1958; or
(e) the Police Assistance Compensation Act
1968; or
(f) the Victoria State Emergency Service Act
25 1987; or
(g) the Emergency Management Act 1986; or
(h) a law of the Commonwealth or of another
State or of a Territory that corresponds to a
law referred to in one of the preceding
30 paragraphs.
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s. 14
(3) In this Part--
"damages" include pecuniary and non-pecuniary
damages and damages pursuant to Part III of
the Wrongs Act 1958;
5 "Insurer" means the public liability insurer of the
Operator at the time the relevant adventure
activity was conducted;
"medical practitioner" means a registered
medical practitioner (within the meaning of
10 the Medical Practice Act 1994) and, in
relation to anything done for the purposes of
this Act in a place outside Victoria, includes
a medical practitioner who is lawfully
qualified under a law in force in that place to
15 do that thing;
"medical report" means--
(a) a statement in writing on medical
matters concerning the person, made by
a medical practitioner; and
20 (b) includes any document which the
medical practitioner intends should be
read with the statement, whether the
document was in existence at the time
the statement was made or was a
25 document which he or she obtained or
caused to be brought into existence
subsequently;
"serious injury" means--
(a) a serious long-term impairment or loss
30 of a body function; or
(b) permanent serious disfigurement; or
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s. 15
(c) severe long-term mental or severe long-
term behavioural disturbance or
disorder; or
(d) loss of a foetus.
5 (4) For the avoidance of doubt it is hereby declared
that all the provisions of this Part contain matters
that are substantive law and are not procedural in
nature.
15. Determination by the Insurer
10 (1) Subject to section 16(2), a participant may not
bring proceedings in accordance with this Part
unless a determination of the degree of
impairment of the participant has been made
under sub-section (2).
15 (2) Subject to sub-section (5), the Insurer must make
a determination of the degree of impairment of the
participant as a result of the injury assessed in
accordance with section 17, within 120 days of
receiving a written application for a determination
20 from the participant.
(3) An application under sub-section (2)--
(a) must be in the prescribed form; and
(b) must be accompanied by--
(i) a copy of all medical reports; and
25 (ii) affidavits attesting to such other
material--
existing when the application is made and of
which the participant or his or her legal
representative is aware and on which the
30 participant intends to rely, or the substance
of which the participant intends to adduce in
evidence, in proceedings in accordance with
this section or in any related proceedings.
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(4) If the participant unreasonably refuses to comply
with a request by the Insurer that the participant
submit to a medical examination, to be paid for by
the Insurer, or in any way hinders such an
5 examination, the period between the date on
which the participant so refused to comply, or
hindered the examination, and the date of the
examination must be disregarded in calculating
the period of 120 days referred to in sub-sections
10 (2) and (6).
(5) Despite sub-section (2), if the application is
received during the first 104 weeks after the
injury, the Insurer may refuse to make a
determination if the Insurer is not satisfied that the
15 participant's injury has stabilised.
(6) The Insurer must, within 120 days of receiving the
application, advise the participant in writing--
(a) of the determination; or
(b) of the refusal to make a determination under
20 sub-section (5).
(7) The advice referred to in sub-section (6) must be
accompanied by--
(a) a copy of all medical reports; and
(b) affidavits attesting to such other material--
25 existing when the advice is given and of which the
Operator or the Insurer or the legal representative
of either of them is aware and on which they
intend to rely or the substance of which they
intend to adduce in evidence in proceedings
30 brought by the participant in accordance with this
section or in any related proceedings.
(8) If the Insurer fails to advise the participant in
writing within 120 days of receiving the
application--
35 (a) of the determination; or
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(b) of the refusal to make the determination
under sub-section (5)--
the participant is deemed to have suffered a
serious injury.
5 (9) The participant, within 28 days after receiving the
advice referred to in sub-sections (6) and (7), may
give to the Insurer an affidavit attesting to such
further material (whether or not existing before
the participant made the application under sub-
10 section (2)) in rebuttal of the material (other than
medical reports) attested to in affidavits
accompanying the advice.
(10) In proceedings in accordance with this section, a
medical report or other material is inadmissible in
15 evidence--
(a) on behalf of the Insurer if--
(i) it was in existence, and the Operator or
Insurer, or the legal representative of
either of them, was aware of it, before
20 the date by which the advice of the
Insurer is required to be given under
sub-sections (6) and (7); and
(ii) it had not been disclosed to the
participant in accordance with sub-
25 sections (6) and (7); or
(b) on behalf of the participant if--
(i) it was in existence, and the participant
or the participant's legal representative
was aware of it, before the expiration of
30 28 days after receiving the advice under
sub-sections (6) and (7); and
(ii) it had not been disclosed to the other
party in accordance with sub-section
(3) or (9).
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s. 16
(11) If the Insurer determines that the degree of
impairment of the participant as a result of the
injury assessed in accordance with section 17 is
30 per centum or more, the injury is deemed to be
5 a serious injury within the meaning of this Part.
(12) If a participant makes an application for a
determination under sub-section (2) of the degree
of impairment of the participant, the participant
must not make a further application for such a
10 determination unless it is the first application
made after the Insurer has refused to make a
determination in accordance with sub-section (5).
16. Entitlement to bring proceedings for damages
(1) A participant may bring proceedings to recover
15 damages in respect of the injury if the injury is
deemed to be a serious injury in accordance with
section 15(8) or section 15(11).
(2) If the Insurer has--
(a) advised the participant of its determination in
20 accordance with section 15(2) and its
determination is that the degree of
impairment of the participant is less than
30 per centum; or
(b) advised the participant of its refusal to make
25 a determination in accordance with section
15(5)--
the participant may not bring proceedings for the
recovery of damages in respect of the injury
unless--
30 (c) the Insurer--
(i) is satisfied that the injury is a serious
injury; and
(ii) issues to the participant a certificate in
writing consenting to the bringing of
35 proceedings; or
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PART 3--DAMAGES IN RESPECT OF DEATH OR SERIOUS INJURY
s. 16
(d) a court gives leave to bring the proceedings,
on application of the participant.
(3) A copy of an application under sub-section (2)(d)
must be served on the Insurer and on each person
5 against whom the applicant claims to have a cause
of action.
(4) A court must not give leave under sub-section
(2)(d) unless it is satisfied that the injury is a
serious injury.
10 (5) A dependant of a person may recover damages
under Part III of the Wrongs Act 1958 in respect
of the death of a participant.
(6) Where an award of damages in accordance with
this section is to include an amount, assessed as a
15 lump sum, in respect of damages for future loss
which is referable to--
(a) deprivation or impairment of earning
capacity; or
(b) loss of the expectation of financial support;
20 or
(c) a liability to incur expenditure in the future;
or
(d) any loss suffered by a dependant--
the present value of the future loss must be
25 qualified by adopting a discount rate of 6 per
centum in order to make appropriate allowance for
inflation, the income from investment of the sum
awarded and the effect of taxation of that income.
(7) Except as provided by sub-section (6), nothing in
30 that sub-section affects any other law relating to
the discounting of sums awarded as damages.
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(8) A court must not, in relation to an award of
damages in accordance with this section, order the
payment of interest, and no interest shall be
payable, on any amount of damages, other than
5 damages referable to loss actually suffered before
the date of the award, in respect of the period from
the date of the death or injury to the participant in
respect of whom the award is made to the date of
the award.
10 (9) Except as provided by sub-section (8), nothing in
that sub-section affects any other law relating to
the payment of interest on any amount of
damages, other than special damages.
17. Assessment of impairment
15 (1) In this Part, a reference to the assessment of a
degree of impairment in accordance with this
section is a reference to an assessment--
(a) made in accordance with--
(i) the A.M.A. Guides; or
20 (ii) the methods prescribed for the purposes
of this section--
and in accordance with operational
guidelines (if any) as to the use of those
Guides or methods issued by the Minister;
25 and
(b) if the Minister has approved a training course
in the application of those Guides or
methods, made by a medical practitioner
who has successfully completed such a
30 training course.
(2) In assessing a degree of impairment under sub-
section (1), regard must not be had to any
psychiatric or psychological injury, impairment or
symptoms arising as a consequence of, or
35 secondary to, a physical injury.
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s. 18
(3) For the purposes of assessing the degree of
psychiatric impairment, the A.M.A. Guides apply,
subject to any regulations made for the purposes
of this section, as if for Chapter 14 there were
5 substituted the Clinical Guidelines to the Rating of
Psychiatric Impairment prepared by the Medical
Panel (Psychiatry) Melbourne, Victoria October
1997 and published in the Government Gazette.
(4) In this section "A.M.A. Guides" means the
10 American Medical Association's Guides to the
Evaluation of Permanent Impairment (Fourth
Edition) (other than Chapter 15) as modified by
this Act and any regulations made under this Act.
18. Where no Insurer
15 Where there is no Insurer, this Part shall, with any
necessary modification, apply as if the Operator
were the Insurer.
__________________
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PART 3--DAMAGES IN RESPECT OF DEATH OR SERIOUS INJURY
Sch.
SCHEDULE
Section 9(3)
For the purposes of section 9(3), activities which may be specified as an
Operator's approved adventure activities include, but are not limited to--
(a) abseiling;
5 (b) canoeing and kayaking;
(c) cattle drives and musters;
(d) fishing;
(e) four wheel drive tours;
(f) hang gliding;
10 (g) hiking or bush walking;
(h) horse riding and horse trail riding;
(i) hot air balloon flights;
(j) light aeroplane and ultra light plane flights;
(k) mountain bike riding;
15 (l) rafting, including white water rafting;
(m) rock climbing, whether indoors or outdoors and whether on a natural
or man-made surface;
(n) snow skiing, snowboarding, cross-country skiing and snowplay with
the aid of toboggans, ski-bobs or inflatable devices;
20 (o) trail bike riding;
(p) any activity designed to simulate any of the activities listed above and
the natural environment in which that activity is usually conducted,
for the purposes of teaching the skills necessary to undertake that
activity.
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Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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