Obvious risk: an overview for casualty claims handlers

In brief - Courts may reduce damages due to contributory negligence

While most Australian jurisdictions limit the liability and duty of care of a person in circumstances where there is obvious risk, the courts will determine each case on its facts.

Voluntary assumption of risk

At common law, a duty of care does not exist in circumstances where a person has voluntarily assumed a risk which then materialises. This position has now been codified in most Australian jurisdictions including NSW where divisions 4 and 5 of Part 1A of the Civil Liability Act 2002 (NSW) (CLA) limit the liability and duty of care of a person in circumstances where a risk is obvious.

What is an obvious risk?