In brief - Councils should perform risk assessments and observe
ongoing use of recreational facilities
Councils managing recreational facilities such as sports fields,
children's playgrounds and skate parks will almost universally
owe a duty of care to take precautions against a risk of harm
arising from public use of those facilities.
Implementing reasonable measures to remove substantive
Good practice dictates that councils should consider ongoing
risk assessment of these facilities and implementation of
reasonable measures to remove any substantive risks, or face
increasing liability exposure for injuries occasioned by their
What is an "obvious risk" under the Civil
In common with private entities, Queensland councils facing
injury claims have the benefit of various defences under the Civil Liability Act. However, these defences do not
have the wide ranging exculpatory effect that a cursory reading of
the Act might suggest.
For example, the Act provides a defence for harm suffered as a
result of an "obvious" risk of a "dangerous
recreational activity". Courts are inclined to construe the
concept of an "obvious risk" narrowly. (See State of Queensland v Kelly  QCA
27.) An activity is said to be "dangerous" under the
Act only if it involves a "significant risk of physical
Risks posed to all members of the public, including
Further, even if a risk appears to be "obvious" to an
average person, taking preventative measures may still be prudent,
particularly as councils are expected to take reasonable steps to
remove risks posed to everyone who uses the facility, including
Accordingly, the Civil Liability Act defences do not
provide a blanket "safe harbour" for all occasions. A
council's culpability in each case will be assessed
independently, in the particular circumstances of each case.
Councils should expect their actions in response to risks to be
Early risk assessments and ongoing use observation are essential
to identify the substantive risks for each council recreational
facility. Once risks are identified, councils should expect that
the actions they take will be scrutinised in the event of a claim
to determine the adequacy of their response to the risk.
This decision has implications for Government authorities and corporations, and for private sector project proponents.
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