Dangerous Recreational Activities - Torts Law

Class 19- Dangerous recreational activities:

• In NSW CLA defendants are not liable for the materialisation of an obvious risk.

• In Dederer v RTA at trial Dunford J said that it was not an obvious risk to the fourteen year old that jumping off the bridge would cause injury. Yet in the CA the court found that the council was protected by legislation in regards to dangerous recreational activities.

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5L No liability for harm suffered from obvious risks of dangerous recreational activities. (1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk.

Statutes have to be general (have to be coherent and hierarchical with different levels of meaning) but case law is particular- don’t have to be consistent (you can distinguish the case).

Materialisation? Obvious risk? Dangerous? Recreational activity? Engaged in?

5k definitions: obvious risk: A risk that in the circumstances would have been obvious to a reasonable person in the position of that person. It can be obvious even with a low probability of occurring. It can be obvious even if it is not physically observable. It can be a matter of common knowledge.

Recreational activity means any sport for enjoyment, relaxation or leisure.

Fallas v Mourlas (2006) - recreational activities under the CLA

Facts:

• Fallas accidently shot Mourlas while hunting kangaroos by spotlight.

• Mourlas was spotlighting.

• Fallas argued that he was entitled to immunity under the CLA.

Proceedings:

• Fallas lost in trial. He appealed to the NSW CA.

Legal issue:

• Does the event fall within an obvious risk in dangerous recreational activities under section 5L and 5K of the CLA?

Outcome:

• Appeal dismissed. Fallas lost.

Legal reasoning:

• IPP JA reasoned that to assess whether a recreational activity is dangerous you need to determine whether it involves significant risk. Significant doesn’t mean a risk that is likely to occur because that would assign too high a probability. It is a standard between trivial risk and a risk likely to materialise. At least one of the significant risks must materialise as an obvious risk that transforms a recreational activity into a dangerous recreational activity.

• The question of whether a recreational activity is dangerous depends on the particular circumstances. A walk along a cliff in the day is not dangerous but is at night. 5K should not be treated generally or it will be unfair for the plaintiff. The dangerousness should be assessed by the activities engaged in at the time.

• Section 5L may mean having to accept the risks of another person being negligent. However the risk of a person being grossly negligent may not be obvious.

• The risks of shooting kangaroos must depend on the circumstances. If the person was experienced it may not be dangerous. These men were not experienced at shooting. There was a significant risk that they might handle the gun in a negligent manner. Mr Moulas asked Fallas to make sure the gun was safe and to point it outside but he did not. This was gross negligence in the face of earnest requests to be careful. Fallas reassured him that there was no obvious risk. It was not an obvious risk within section 5K.

• There is a range for what significance means. The term lays down a standard lying somewhere between greater than trivial but less than a risk likely to materialise. Look at probability of the risk and seriousness of harm/ the outcome. Significant risk can shift a recreational activity to a dangerous recreational activity. Just because there is a significant risk in the recreational activity doesn’t mean this is the risk that has to eventuate. It just has to be ‘an’ obvious risk that occurred and not ‘the’ obvious risk that they thought would occur – you don’t have to have seen it at the time. If the risk isn’t significant then it is not obvious even if it is what is widely known to be a dangerous recreational activity. It is an objective test- to a reasonable person.

• Boxing is a dangerous recreational activity but if you get hit after the bell is it a significant risk? It may or it may not.

• You have to look at the purposive approach when there is ambiguity. He looked at the IPP recommendations. The dangerousness of the activity is to be determined by the activities engaged in by the plaintiff at the relevant time.

• If there is negligent conduct it is an obvious risk in this situation. However gross negligence is not an obvious risk- you don’t expect this from people. This converts this case into being not an obvious risk. Why should there be a liability screen if someone is grossly negligent?

• It was a dangerous recreational activity but it was not an obvious risk.

• Basten JA reasoned that it was a breach of duty that allowed the gun to point at another person. This was a foreseeable risk. The dispute centred on section 5L and not whether Fallas was negligent; he clearly was. The activity was shooting kangaroos at night and the risk was being shot. The person in the car holding a spotlight is not involved in the activity which resulted in it being a dangerous activity.

• In the concept of dangerousness, a catastrophic risk with low probability will be significant and a harm may not be significant if it is not serious.

• Significant risk requires an objective test. There are three ways to consider whether the risk of harm is significant: the first is to assume that any risk will be significant because the results will be catastrophic, The second is to look for statistics to find out the frequency and the third is to look at the circumstances and decide whether the parties were competent and experienced users of guns.

• The risk may not be obvious due to all the assurances of Fallas. Yet there was still obvious risk even if he went against the rules for handling guns. It was an obvious risk. Yet it was not a dangerous recreational activity.

• The legislation is more about what the defendant did. So it is not really volens. You can’t use common assumptions of what risk is or you take someone’s rights away. You have to look at the case.

• The risk that materialised was the accidental shooting of the plaintiff which was an obvious risk (different from Ipp’s grossly negligent). Was it a dangerous recreational activity? The evidence left doubt whether the risk was a materialisation of the dangerous recreational activity.

Ratio decidendi:

• There is a distinction between negligent acts in dangerous recreational activities and grossly negligent acts (these are not obvious).

• 5K should not be treated generally or it will be unfair for the plaintiff.

• There is a range for what significance means. The term lays down a standard lying somewhere between greater than trivial but less than a risk likely to materialise.

• Obvious risk refers to a class of things that might materialise and not the exact risk that materialised.

• A risk may be obvious even if it has a low probability of occurring. The significance of the risk should be judged by an objective test.

Notes:

• In Doubleday v Kelly (2005), a seven year old was injured while roller skating on a trampoline. Bryson JA reasoned that the risk must be obvious to a reasonable person. A reasonable seven year old would not see the risk of the trampoline. Was the test to subjective in this case? When do we shift from the general to the specific? Does it fit in with the general test?

• Professor Fleming wrote that negligence must conform to the best economic sense of a legal standard of reasonable care. Cost is considered through economic efficiency.

Division 5 Recreational Activities CLA

5J Application of Division

• (1) This Division applies only in respect of liability in negligence for harm to a person ( "the plaintiff") resulting from a recreational activity engaged in by the plaintiff.

• (2) This Division does not limit the operation of Division 4 in respect of a recreational activity.

5K Definitions

• In this Division:
  "dangerous recreational activity" means a recreational activity that involves a significant risk of physical harm.
  "obvious risk" has the same meaning as it has in Division 4.
  "recreational activity" includes:

• (a) any sport (whether or not the sport is an organised activity), and

• (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

• (c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

5L No liability for harm suffered from obvious risks of dangerous recreational activities

(1) A person ( "the defendant") is not liable in negligence for harm suffered by another person ( "the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

(2) This section applies whether or not the plaintiff was aware of the risk.

5M No duty of care for recreational activity where risk warning

(1) A person ( "the defendant") does not owe a duty of care to another person who engages in a recreational activity ( "the plaintiff") to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.

(2) If the person who suffers harm is an incapable person, the defendant may rely on a risk warning only if:

(a) the incapable person was under the control of or accompanied by another person...