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The Act allows recreational service providers to register to comply with a safety code. A safety code is a list of things that service providers must do, to make the activity reasonably safe for consumers.
for example
If you provide horse-riding services, a safety code may require you to ‘check that all riders are wearing a helmet'.
If a service provider registers to comply with a safety code, the requirements of the code will replace existing statutory and common law duties of care in relation to negligence. The duties of care outlined in the code may be:
- more clear/certain than existing laws; and
- less onerous than existing laws
Increased clarity/certainty
A code of practice will clearly indicate what is required of the service provider. It will not have the vagaries of common law terms such as ‘reasonableness', and will therefore provide less room for judicial interpretation. This will make it easier for service providers to discharge their duty of care and will therefore help protect them from being sued.
for example
Consider the example of a safety code dealing with water skiing. A provision in the code might state that ‘the service provider must ensure riders are wearing life jacket model XYZ'. A service provider therefore knows that life jacket model XYZ is an appropriate life jacket. Without a safety code, a court may find that life jacket model XYZ was inappropriate.
Less onerous duty of care
The requirements of a safety code may be less onerous than existing common law and statutory duties of care. Again this will make it easier for service providers to discharge their duty of care, and will therefore help protect them from being sued.
for example
Consider a safety code relating to bike riding. A code may state that ‘the service provider must check that all riders are wearing helmets before they get on the bike, and advise riders not to take the helmet off until the activity has finished'. This provision places some of the onus back on the consumer. If the consumer takes the helmet off during the ride, and an injury results, the service provider is not responsible for the injury. The consumer was warned not to take the helmet off, and if they do take it off, the consumer voluntarily assumes the risk of injury.
Potential for reduced insurance premiums
By making it easier for service providers to discharge their duty of care, a safety code reduces the likelihood that service providers will breach their duty of care. This may, in turn, enable service providers to negotiate a reduced public liability insurance premium with their insurer.
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