Arsalan v Rixon; Nguyen v Cassim

The High Court of Australia considered appeals from the Court of Appeal of the Supreme Court of New South Wales in two separate matters, *Arsalan v Rixon* and *Nguyen v Cassim*. Both cases concerned the application of the *Civil Liability Act 2002* (NSW) and, in particular, the interpretation of section 5L, which deals with the defence of an obvious risk of a dangerous recreational activity. The central dispute in both appeals revolved around whether the plaintiffs had been adequately informed of the risks involved in the activities they undertook, and whether those risks were "obvious" for the purposes of the statutory defence.

The primary legal issue before the High Court was to determine the correct interpretation of section 5L of the *Civil Liability Act 2002* (NSW), specifically the meaning of "obvious risk" and the requirements for a defendant to establish the defence. This involved considering the nature of the recreational activities, the knowledge of the plaintiffs regarding the risks, and the defendant's duty to warn. The court was required to clarify the scope of the defence and its application in circumstances where a plaintiff suffers injury during a recreational activity.

In its joint judgment, the High Court clarified that an "obvious risk" is one that is "not insignificant". The court held that the defendant bears the onus of proving that the risk was obvious. Crucially, the court found that section 5L does not require a defendant to prove that the plaintiff was aware of the specific risk that caused the injury, but rather that the risk was obvious to a reasonable person in the position of the plaintiff. The court further explained that the defendant must establish that the plaintiff was aware of the *possibility* of the risk, even if the plaintiff did not appreciate the *probability* or *severity* of that risk. The court allowed the appeal in *Arsalan v Rixon* and dismissed the appeal in *Nguyen v Cassim*, finding that the defence under section 5L was made out in the former but not the latter.