(1) For this division, an
"obvious risk" to a person who suffers harm is a risk that, in the
circumstances, would have been obvious to a reasonable person in the position
of that person.
(2) Obvious risks include risks that are patent or a matter
of common knowledge.
(3) A risk of something occurring can be an obvious risk
even though it has a low probability of occurring.
(4) A risk can be an
obvious risk even if the risk (or a condition or circumstance that gives rise
to the risk) is not prominent, conspicuous or physically observable.
(5) To
remove any doubt, it is declared that a risk from a thing, including a living
thing, is not an obvious risk if the risk is created because of a failure on
the part of a person to properly operate, maintain, replace, prepare or care
for the thing, unless the failure itself is an obvious risk.
Examples for
subsection (5)—
1 A motorised go-cart that appears to be in good condition
may create a risk to a user of the go-cart that is not an obvious risk if its
frame has been damaged or cracked in a way that is not obvious.
2 A bungee
cord that appears to be in good condition may create a risk to a user of the
bungee cord that is not an obvious risk if it is used after the time the
manufacturer of the bungee cord recommends its replacement or it is used in
circumstances contrary to the manufacturer’s recommendation.
