Bob,
A document could be crafted which should protect a landowner, if it contained
an acknowledgment by the birder that they are entering at their own risk, and
will not sue the landowner for anything including negligence. If you were
trying to protect the landowner as much as possible the birder could agree to
indemnify the landowner for any loss or liability they suffer as a direct
result of the birder entering the land (though query whether it’s reasonable
for the birder to have to do so).
Of course one can never say this would mean the landowner “can’t be sued” – it
would give them a strong defence against an action by the birder and might mean
the birder had to cover the landowner’s legal costs, if someone was silly
enough to try suing after signing such a document.
There were changes to tort law about a decade ago designed to prevent people
being liable for injuries for “obvious risk”. So the idea that a landowner can
be held liable for a birder breaking their ankle in a random rabbit hole in the
outback doesn’t stack up. On the other hand, if there was blatant negligence
(e.g. the landowner sets a whole lot of illegal traps right where he knows
birders are going and doesn’t warn them and someone gets badly hurt), then it
might be questionable if the landowner could rely on something the birder
signed to absolve him of all liability.
The point Ian raised about people having a right to enter pastoral leases is
interesting and worth looking into some more. Anyone know if this particular
site is freehold or pastoral lease?
There also seem to be some misconceptions about insurance. If a university /
bird club / bird tour company has public liability insurance it will only cover
the university / bird club / bird tour company’s liability. It wouldn’t
protect the owner of land they happened to be on at the time.
Cheers,
Murray Lord
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