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Thursday, 12 December 2002
Page: 7990


Senator LUDWIG (9:14 PM) —I am happy to go through it again. I am thinking of a minor who is going to utilise the sporting activity and is unable to comprehend the waiver. They may be of an age such that the courts would say that a waiver such as that would be beyond their ordinary comprehension. We could pick an age—say, nine or five years of age. We say that in that instance the waiver should be signed by a guardian or someone else who could bring it to their attention. As I understand it—and perhaps I need more of an explanation—the minister is saying that a minor, whether they can comprehend the waiver or not, cannot sue for negligence, in any event, because it is a contract under the Trade Practices Act. I doubt whether that is quite right. My understanding is that a minor could sue for negligence if negligence had occurred. I was also going to say that, even if there were a contract and there were privity of contract, I doubt very much that the courts would hold that a third party such as a guardian could not stand in their shoes and sue on their behalf if there was damage. Of course, Trident General Insurance tells us quite clearly that privity does not always hold.