Section 5M of the Civil Liability Act 2002 (NSW), which negates a duty of care for recreational activities where a risk warning is given, is not picked up by s 74(2A) of the Trade Practices Act because it negates the existence of a duty rather than limiting or precluding liability for breach. An exclusion clause that extends to property damage as well as death and personal injury is not saved by s 68B of the Trade Practices Act, even if the claim is only for personal injury. Section 5B of the Civil Liability Act (general principles of negligence) is picked up by s 80 of the Judiciary Act to apply to claims for breach of the implied warranty under s 74(1) when a State court exercises federal jurisdiction. Whether s 5M applies only to tortious duties of care or also to contractual duties remains an open question.
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