Falvo v Australian Oztag Sports Association

The plaintiff, Falvo, sustained injuries while participating in an Oztag game played on a field maintained by the local council. Falvo sued both the council and the Australian Oztag Sports Association (AOSA) for negligence. The primary dispute concerned whether the defendants owed a duty of care to the plaintiff, and if so, whether they breached that duty, leading to his injuries. The case was heard in the New South Wales Court of Appeal.

The central legal issues before the Court of Appeal were whether the Oztag Association owed a duty of care to the plaintiff, and if so, whether that duty had been breached. Crucially, the court had to determine whether playing Oztag constituted a "dangerous recreational activity" within the meaning of section 5K of the *Civil Liability Act 2002* (NSW). This determination was essential to assessing whether the defendants could rely on the protections afforded by sections 5K and 5L of the Act, which can exclude liability for harm suffered from obvious risks of dangerous recreational activities. The court also considered the issue of causation.

The Court of Appeal found that the AOSA did owe a duty of care to the plaintiff. However, it held that Oztag, as played by the plaintiff, was not a "dangerous recreational activity" as defined by the *Civil Liability Act 2002* (NSW). The court reasoned that the activity, while involving some inherent risks, did not reach the threshold of being inherently dangerous in the context of the statutory definition. Consequently, the protections under sections 5K and 5L were not applicable. The court ultimately dismissed the appeal, upholding the primary judge's decision that the defendants were not liable. The appeal was dismissed with costs awarded to the respondents.