For the purposes of the s 5L defence under the Civil Liability Act 2002 (NSW), the risk that must be proved to have been 'obvious' is the risk that actually materialised, not merely any risk of harm. Awareness of a risk of minor injury does not establish that the risk of serious injury was obvious. An activity may be a 'dangerous recreational activity' (involving a significant risk of physical harm) while the specific risk that materialised was not an 'obvious risk', as these are distinct elements of the defence. The assessment of whether an activity is 'dangerous' must be prospective and objective, and cannot rest solely on after-the-fact expert evidence of non-obvious biomechanical risks.
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