Fallas v Mourlas

The case of *Fallas v Mourlas* concerned an appeal from a decision of the Supreme Court of New South Wales. The appellant, Mr Fallas, had suffered injury when a handgun accidentally discharged while he was hunting kangaroos by spotlight with the respondent, Mr Mourlas. Mr Fallas alleged that Mr Mourlas had been negligent in his handling of the firearm.

The central legal issues before the Court of Appeal were whether the activity of hunting kangaroos by spotlight constituted a "dangerous recreational activity" under the *Civil Liability Act 2002* (NSW), and if so, whether the risk of accidental discharge of a firearm was an "obvious risk" of that activity. The court was required to consider the meaning of "significant risk" and whether the specific actions of the parties should be segmented when assessing the nature of the activity and the risk.

The Court of Appeal, applying the provisions of the *Civil Liability Act 2002* (NSW), determined that hunting kangaroos by spotlight was indeed a dangerous recreational activity. The court reasoned that the risk of accidental discharge of a firearm during such an activity was an obvious risk, as it was a risk that would have been obvious to a reasonable person in the position of the plaintiff. The court rejected the argument that the activity should be segmented, finding that the overall activity of hunting by spotlight encompassed the risk that materialised. The court further clarified the relationship between a "significant risk" and an "obvious risk" under the Act, holding that an obvious risk does not need to be significant.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.