A sign of the times: Do joggers need to wear helmets?

The sign has now been confirmed to be a fake. However, it leads to an interesting question – is it possible that a council can force joggers to wear a helmet? And if they don’t, could they bear the brunt of the Civil Liability Act 2002 (CLA)?

Civil Liability Act

Section 5B of the CLA states that a person is not negligent in failing to take precautions against a risk of harm unless that risk was foreseeable, not insignificant and a reasonable person in the same position would have taken those precautions. Additionally, sections 5L and 5M respectively provide that there is no liability where the plaintiff suffers harm as a result of an obvious risk of an inherently dangerous activity, or where there is a “risk warning” in relation to the plaintiff undertaking a recreational activity. So how can these principles apply to joggers running on public land?

As defined by section 5K of the CLA, jogging is undoubtably a recreational activity. That a council owes a duty to take reasonable care to users of its land, including erecting warning signs advising of potential dangers, is not a new concept. The courts have however long struggled with how broad this duty should be.

The scope of duty of care

The courts have found on various occasions that the magnitude, obviousness and foreseeability of the risk associated with certain activities will inform a public authority’s decision to erect a warning sign. In the case of Vairy v Wyong Shire Council (2005) 223 CLR 422, the High Court noted that a council’s duty of care to those who enter its land “is not limited to taking reasonable care to prevent one particular form of injury associated with one particular kind of recreational activity”. In doing so, the court recognised the breadth of possible risks and dangers which may exist on council lands and which a council must have regard to. For some of these risks, the court stated, the answer as to what precautions a reasonable public authority will take to avoid a risk of harm will sometimes be… “nothing”.

So, do joggers need to wear helmets?

Noting the defences available to public authorities set out in part 5 of the CLA and the limited resources a council has to allocate towards addressing the various possible dangers present in lands under their control, the likelihood that a council will need to require joggers to wear helmets is low.

That being said, in the 1990s, Australia became the first country to legislate the wearing of bicycle helmets. This requirement is now contained in the Australia Road Rules and the national conversation around the desirability of these laws continues to this day.

Although there are obvious practical difficulties for a council trying to enforce the wearing of helmets by joggers, that a council may one day require the wearing of helmets in an effort to deter claims brought by injured joggers is still possible.