Victorian Consolidated Legislation

Fair Trading Act 1999 - SECT 32N

Limitation of liability in relation to supply of recreational services

32N. Limitation of liability in relation to supply of recreational services



(1) Subject to subsection (2), a term of a contract of supply of recreational
services is not void under section 32L or 32LA by reason only that the term
excludes, restricts or modifies, or has the effect of excluding, restricting
or modifying-

   (a)  the application of section 32J or 32JA to the supply of the
        recreational services under the contract; or

   (b)  the exercise of a right conferred by section 32J or 32JA in relation
        to the supply of the recreational services under the contract; or

   (c)  any liability of the supplier for a breach of condition implied by
        section 32J or 32JA in relation to the supply of the recreational
        services under the contract.

(2) Subsection (1) only applies if-

   (a)  the contract of supply of recreational services was entered into on or
        after the commencement of section 11 of the Fair Trading (Amendment)
        Act 2003; and

   (b)  the exclusion, restriction or modification contained in the term is
        limited to liability for death or personal injury; and

   (c)  the term-

   (i)  contains the prescribed particulars (if any) and is in the prescribed
        form (if any); or

   (ii) is specified, or is of a class of term specified, in an Order made
        under section 32NA; and

   (d)  if there is a prescribed form for the term, the supplier has not made
        a false or misleading statement as to a material particular in or in
        relation to the term; and

   (e)  the term was brought to the attention of the purchaser prior to the
        supply of the recreational services.

(3) Despite subsection (1), a person is not entitled to rely on a term of a
contract in relation to the supply of recreational services which complies
with subsection (2) if-

   (a)  the person has done or omitted to do something in relation to the
        supply of those recreational services that but for subsection (1)
        would-

   (i)  be an act or omission to which section 32J or 32JA would apply; or

   (ii) give rise to the exercise of a right conferred by section 32J or 32JA;
        or

   (iii) be a breach of a condition implied by section 32J or 32JA; and

   (b)  the act or omission was done or omitted to be done with reckless
        disregard, with or without consciousness, for the consequences of the
        act or omission.

(4) In this section-

disease includes any physical or mental ailment, disorder, defect or morbid
condition, whether of sudden onset or gradual development and whether of
genetic or other origin; injury means any physical or mental injury; personal
injury means-

   (a)  an injury of a natural person (including the aggravation, acceleration
        or recurrence of an injury of the individual); or

   (b)  the contraction, aggravation, acceleration or recurrence of a disease
        of a natural person; or

   (c)  the coming into existence, the aggravation, acceleration or recurrence
        of any other condition, circumstance, occurrence, activity, form of
        behaviour, course of conduct or state of affairs in relation to a
        natural person that is or may be harmful or disadvantageous to, or
        result in harm or disadvantage to-

   (i)  the person; or

   (ii) the community; recreational services means services that consist of
        participation in-

   (a)  a sporting activity or a similar leisure-time pursuit; or

   (b)  any other activity that-

   (i)  involves a significant degree of physical exertion or physical risk;
        and

   (ii) is undertaken for the purposes of recreation, enjoyment or leisure.

(5) The definition of injury in subsection (4) does not, by implication,
affect the meaning of the expression injury when used in a provision of this
Act other than this section.