Wednesday, December 11, 2019
Dangerous Recreational Activity and Materialisation
Question: Discuss about the Dangerous Recreational Activity and Materialisation. Answer: Introduction: The defendant that is Alexander Fallas shot his friend accidentally, who is the plaintiff, Con Mourlas in the leg. Both the plaintiff and the defendant were parts of four friends who had traveled all the way from Sydney to Bathurst in search of spotlighting kangaroos and before going for this mission; they had "a couple of beers" with dinner. In this case, the application of Section 5K and 5L of the Civil Liability (Personal Responsibility) Act, 2002 New South Wales has been taken under consideration (Austlii.edu, 2016). In Section 5L, it has been provided that the defendant will not be liable for negligence in any matter if there is the materialization of an obvious risk of any dangerous recreational activity in which the plaintiff also engages in irrespective of whether the plaintiff is aware of the matter or not. In the trial court, it was held that the defendant was liable for negligence, and he had no immunity under Section 5L of the Civil Liability Act. Two issues were taken into consideration in the decision of the Court of Appeal. Ipp and Tobias JJA determined whether spotlighting was a dangerous recreational activity and whether the risk that was materialized in the given instance was an obvious risk or not. The plaintiff contended that the risk that was being stated as a defense by the defendant was not an obvious risk in the given instance. It was agreed that the action was dangerous one in which the four of them were engaged in (Casenotes.curwoods.com.au, 2016). This is because they were not experienced kangaroo hunters and were amateurs in this field. Moreover, they drove for a long distance and had also consumed some amount of alcohol. On top of this, apart from the defendant, none of the other people had a license for owning a gun. In these circumstances, it was agreed that the recreational activity of kangaroo spotlighting was a dangerous one. However, the risk that was associated with the same and the risk that materialized were not one and the same thing. It was contended that Fallas re-entering the car and firing a shot at Mourlas while unjamming the gun was not an obvious risk that was associated with spotlighting kangaroos. From the definition of obvious risk in Section 5F, i t is clear that one should have regard to a particular circumstance in which the respondent suffers a relevant harm. A determination is given as to whether the risk that causes the suffering and those harms are obvious in the eyes of any other reasonable person who has been in his position. To determine whether the activity in which the respondent was engaged was a dangerous recreational activity or not, it is essential to make a note of all those things and circumstances that took place immediately before the suffering of the relevant harm of the respondent. Then a determination should be made as to whether the risk that in fact materialized was an obvious one or not (Hilson, 2008). In this incident, the activity with which Mourlas was engaged was that of sitting in a vehicle and holding the spotlight for his other three friends who were the shooters and were outside the vehicle in most of the times. In this situation, one or more of the shooters would have left or entered the vehicle with or without guns which could or could not have been loaded at any point in time when the activity was in action. This activity is solely carried on by the plaintiff, and it is limited and distinguishable from other activities that constitute and qualify within the description of shooting kangaroos by spotlight (Barristerdirect.com.au, 2015). Mourlas was sitting inside the car, and when Fallas entered the car, he repeatedly asked him not to do it and also warned him about the loaded gun. The other hand told him that the gun was not loaded and that he was careful enough and also said that he was sure that no harm would be caused to anyone because of his presence in the car. In si milar circumstances, it can be said that Mourlas was aware of the risk, and he was also sure about the fact that a loaded gun could have caused injury. However, this was not a part of the spotlighting of kangaroos and thus, with the recreational sport of spotlighting kangaroos, the entering of the vehicle with the loaded gun was not a part thereof (Fallas v Mourlas, ). Thus, it is evident in the present matter that the risk which materialized was not a part of the sport, and hence immunity cannot be claimed by the defendant in the matter under Section 5L of the Civil Liability Act (Katsivela, 2014). The reasonability test is also not being satisfied in the given instance. No other reasonable person could have guessed that an unloaded gun could have caused an injury in similar circumstances. However, it was just the opposite that happened in the given instance and hence it can be said that the defendant was liable for negligence in the matter and cannot claim any immunity. Thus, it can be concluded saying that Mourlas is liable to be indemnified in the matter, and both the Trial Judge as well as the Court of Appeal were justified in upholding their decisions. References Austlii.edu. (2016).Austlii.edu. [online] Available at: https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2006/32.html?stem=0synonyms=0query=title(Fallas%20and%20Mourlas%20)#disp86 [Accessed 14 Sep. 2016]. Barristerdirect.com.au. (2015).CLA: dangerous recreational activity not necessarily an obvious risk. [online] Available at: https://www.barristerdirect.com.au/cla-dangerous-recreational-activity-not-necessarily-an-obvious-risk/ [Accessed 14 Sep. 2016]. Casenotes.curwoods.com.au. (2016).Dangerous Recreational Activity and Materialisation of an Obvious Risk: Fallas -v- Mourlas  NSWCA 32 | Curwoods Case Notes. [online] Available at: https://casenotes.curwoods.com.au/?p=1090 [Accessed 14 Sep. 2016]. Fallas v Mourlas NSWCA p.32. Hilson, C. (2008). Let's Get Physical: Civil Liability and the Perception of Risk.Journal of Environmental Law, 21(1), pp.33-57. Katsivela, M. (2014). The Assumption of Risk Defence in Torts (Common Law) and Extra-contractual Liability (Qubec Civil Law) in Canada.Comparative Law Review, 17, p.13.