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Task: Provide a beteer overview on the Fallas v Mourlas case while justifying the arguments of the defendant (Fallas)
Given that the risk was taken voluntarily and later materialised, there is no duty of care if the case of Australian jurisdiction is taken into consideration. The benchmark case Fallas v. Mourlas (2006) NSWCA 32 led to the legislation passing a statute on the topic of harmful recreational activity and the materialisation of clear risks. In the section of the report that follows, we defend Alexander Fallas with arguments.
Facts of the Situation
The Fallas v. Mourlas incident involved the petitioner and the offender, along with an additional two people. At around 10.30 p.m., they drove deep into the bush in search of kangaroos. The petitioner was the driver at the time, and the defendant was seated next to the driver's seat, holding a flashlight. When the car came to a stop in the forest, the defendant and the other two got out, and when Mr. Fallas (the defendant) got back in, he was holding a revolver. Mr. Fallas was sternly warned by Mr. Mourlas (the petitioner) not to load the gun because he would be allowed to enter the car with one. Mourlas was informed by Fallas that the gun was unloaded and secure to transport. Fallas persisted in operating the car because he believed the information that had been given. The rifle was jammed, and Mr. Mourlas noticed it by shaking it ferociously. By bad luck, Fallas was wounded in the thigh when the gun accidentally fired, seriously injuring the petitioner.
Arguments and Justifications on the Part of a Defendant
The gun was discharged as a result of the defendant's negligence, which ultimately caused the petitioner's harm. So the defendant must be submitted to the court in accordance with section 5L of the Civil Liability Act of 2002. If both parties are engaged in a risky and dangerous recreational activity, neither party can be held responsible for an act that occurred as a result of their negligence and ultimately caused harm to the other party. Due to the danger's materialisation in these kinds of circumstances, the concerned parties are aware of the risks and dangers associated with the action. This provision makes it apparent that the petitioner should be held accountable rather than the defendant because he was aware of the risk associated with the behaviour (Australasian Legal Information Institute, 2015).
According to section 5K of this act, harmful leisure activities fall into the category of pursuits with a high likelihood of endangering someone's physical safety. This rule applies to any sports or leisure activities that provide a high risk of injury when engaged in. A precise and understandable characterization of the likely dangers using general knowledge is given in section 5F. Even if the participant is unaware of the risk or the likelihood of it occurring is very remote, an action is covered by this section of the legislation (Australasian Legal Information Institute, 2015).
Mr. Mourlas, the petitioner engaged in a high-risk action, and there is a significant likelihood that the engaging party will suffer significant injury as a result (Cormack, 2015). Section 5L of the legislation states that the engaging party's lack of knowledge of the potential hazards does not give him legal protection. As a result, the petitioners have little authority to reproach the other party. In the instance under discussion, there was a significant risk while the accused, Fallas, was holding the spotlight and the defender was in the car with a loaded revolver. Mr. Mourlas ought to have been aware of the potential dangers of carrying a gun, particularly if one is provided to a very inexperienced shooter. Instead of holding the rifle in his hand, Mr. Mourlas ought to have requested that the Fallas set it down. The petitioner's frivolity caused him to sustain a physical damage despite having complete knowledge of the incident's risk.
Mr. Mourlas is unable to defend himself while making accusations against others by claiming that he was only in control of the car and not the gun. He engaged in a risky recreational activity, whether he did so knowingly or not. He was a member of the group that went on a nighttime jungle hunt. In this instance, the petitioner's claim cannot be upheld as genuine (PACI, 2006).
If the defendant were to see the situation from his point of view, he would try to concentrate more on the risk that had already been proven in the incident. The likelihood of the petitioner being shot in this case was extremely low, but that fact cannot be utilised to the petitioner's advantage because he was supposed to be aware of the risk involved in the situation. Anyone with some common sense or practical experience should have known that the rifle is unloaded and would have been cautious if the defender had wavered the weapon. The incident took place inside the car, therefore the chance of an accident was extremely high. According to section 5L (1) of Fallas, Fallas is not responsible or liable for the incident that occurred (Australasian Legal Information Institute, 2006).
The court should also be aware that the people who participated in the action were drunk, which increased the likelihood and severity of the danger. The participants were not at their highest levels of consciousness or action control (Australasian Legal Information Institute, 2006). It has been shown in numerous research that drinking alcohol while driving increases the risk of accidents. The accident was clearly destined to occur. Additionally, it depends on how mature each individual is, and given that the engaged men were tyros, the accident was unavoidable.
In the fallas v. mourlas case, Mr. Fallas was found liable for the negligent act and consequently for the physical harm that Mr. Mourlas suffered. Judge Quirk DCJ issued the decision in the Fallas v. Mourlas case, concluding that the petitioner was being duped by the defendant and was unaware of the risk involved. The judge rejected the petitioner's claim that he was engaging in a harmful leisure activity in violation of Section 5K. In the Fallas v. Mourlas case, the judge ruled that the petitioner's damage occurred as a result of the activity's inherent risk and was brought on by the defendant's delusional claims. Following that, the section 5L argument was likewise rejected. Fallas was required to pay Mourlas $98467 as compensation for the harm to his body (Australasian Legal Information Institute, 2006). The defendant appealed this ruling to a higher court because he was contesting this jurisdiction. The higher court, however, dismissed the appeal on the grounds that the risk was not apparent in this instance and that the defender was not entitled to an appeal.
Australasian Legal Information Institute. (2006) Fallas v Mourlas  NSWCA 32 (16 March 2006). [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2006/32.html?stem=0&synonyms=0&query=title(Fallas%20and%20Mourlas%20) [Accessed on: 27/09/16]
Australasian Legal Information Institute. (2015) Civil Liability Act 2002. [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/index.html#s5f [Accessed on: 27/09/16]
Blue, K. (2010) "Dangerous Recreational Activity and Materialisation of an Obvious Risk": Fallas -v- Mourlas  NSWCA 32. [Online] Curwoods Lawyers. Available from: https://casenotes.curwoods.com.au/?p=1090 [Accessed on: 27/09/16]
Cormack, D. (2015) CLA: Dangerous Recreational Activity Not Necessarily an Obvious Risk. [Online] Barrister. Available from: https://www.barristerdirect.com.au/cla-dangerous-recreational-activity-not-necessarily-an-obvious-risk/ [Accessed on: 27/09/16]
PACI. (2006) Supreme Court of New South Wales - Court of Appeal Decisions: Fallas v Mourlas  NSWCA 32 (16 March 2006). [Online] PACI. Available from: https://www.paci.com.au/downloads_public/court/23_Fallas_v_Mourlas.pdf [Accessed on: 27/09/16]