Task: Provide a beteer overview on the Fallas v Mourlas case while justifying the arguments of the defendant (Fallas)
If the case of Australian jurisdiction is being considered there is no existence of a duty of care, stipulated that the person has adopted a risk voluntarily which thereafter materializes. There was a law promulgated by the legislation regarding the materialization of obvious risks and in the issue of dangerous recreational activity on the behalf of a benchmark case of Fallas vs Mourlas (2006) NSWCA 32. We have given arguments defending Alexander Fallas in the following part of the report.
Facts of the Case
The incident regarding the fallas v mourlas happened when both the petitioner and the perpetrator with further two people. In search of kangaroos, they drove way far into the forest at about 10.30 pm. The vehicle was driven by the petitioner himself and that time the defendant was sitting along the driver seat clutching a spotlight. When the vehicle was stopped in the forest, the defendant and the other two went out of the vehicle and while getting back into the vehicle Mr. Fallas (defendant) was holding a gun. Mr. Mourlas (petitioner) strictly notified Mr. Fallas to keep the gun unloaded because he will allow him to enter the vehicle with a loaded gun. Fallas made it clear to Mourlas that the gun is not loaded and it was safe to travel with it. Fallas continued to drive the vehicle since he was convinced of the provided information. Mr. Mourlas noticed that the gun is jammed and to unjam it, he shook it vigorously. By misfortune the gun discharged and Fallas got shot on his thigh which caused serious injury to the petitioner.
Reasoning and Arguments from Behalf of a Defendant
It was because of the negligence of the defendant that the gun was discharged which eventually resulted in the injury of the petitioner. So it is under the section 5L of the Civil Liability Act 2002 that the defendant should be presented in front of the court. A person cannot be termed guilty or is liable of an act happened because of the negligence that eventually resulted in harming other person provided the condition that the parties are occupied in a recreational endeavor which is precarious and dangerous. In this sort of situations, the engaged parties are conscious of the risks and danger involved in the activity because of the materialization of the pertaining danger. This section makes it clear that instead of the defendant the petitioner should be accused because he was conscious about the risk in the activity (Australasian Legal Information Institute, 2015).
It is defined in section 5K of this act that the dangerous recreational activity comes under the category of those activities that have a high probability of causing physical harm to someone. The sports or leisure activities which can cause harm and pose high danger while indulging in it comes under this law. In section 5F, a precise and clear definition of the probable risks referring to the common knowledge is provided. An activity comes under this section of the law even though the indulging party is not aware of the risk or even if the probability of risk is very small (Australasian Legal Information Institute, 2015).
Mr. Mourlas, the petitioner was indulged in an activity which posed a high risk, and there was a high probability that the engaging party will end up with substantial harm (Cormack, 2015). It is depicted in section 5L of the act that the ignorance of the engaging party about the possible risks does not provide him legal protection. Thus the petitioners have only limited rights in accusing the other person. In the case discussed there was a substantial risk when the defender with the vehicle with a loaded gun and the person accused i.e. Fallas was holding the spotlight. Mr. Mourlas should have been aware of the fact that there is a certain risk in carrying a gun and especially if it is given to a very amateur shooter. Mr. Mourlas should have asked the Fallas to put the gun aside instead of carrying it in hand. The petitioner had absolute knowledge of the risk involved in the incident and it is because of his frivolousness that he ended up with a physical injury.
Mr. Mourlas cannot accuse others and defend himself by portraying that he was not handling the gun and was only in charge of the vehicle. Whether intentionally or unintentionally, he was indulged in a dangerous recreational activity. He was being the part of the group who went for a hunt in the jungle at night. The claim of the petitioner cannot be held valid in this case (PACI, 2006).
If considered the case from the perspective of the defendant he will be attempting to focus more on the risk already prevailed in the incident. The probability of the petitioner being shot was very less in this case, but it cannot be used as a justification from the behalf of the petitioner since he should have been aware of the risk prevailed in the incident. Any person with practical knowledge or a little bit of common sense should have understood that the gun is not loaded and would have been watchful when the gun was wobbled by the defender. The incident happened inside the vehicle i.e. the probability of an accident was very high. As described in section 5L (1) of Fallas is not liable or answerable for the incident happened (Australasian Legal Information Institute, 2006).
It should also be noted by the court that the parties who were indulged in the activity were under the influence of alcohol which elevated the probability and intensity of the danger. The engaged people were not in their optimum consciousness or in had control of their actions (Australasian Legal Information Institute, 2006). In various studies, it had been evident that the likelihood of accidents increases when people are under the influence of alcohol. It was evident that the accident was bound to happen. It also depends on the maturity level of the people and since the engaged guys were tyros the accident was inevitable.
Mr. Fallas was held responsible for the act of negligence and thus was responsible for the physical injury caused to Mr. Mourlas in the fallas v mourlas case. The verdict of fallas v mourlas case was ruled by the judge Quirk DCJ proclaiming the petitioner was unaware of the risk involved and was being deluded by the defendant. The argument of the petitioner is engaged in the activity of dangerous recreational activity under Section 5K was overruled by the judge. The judge made a decree in the fallas v mourlas case that the injury happened to the petitioner was because of the risk involved in the activity, it happened due to the delusional statements of the defendant. In the aftermath, the argument made under section 5L was also denied. Fallas had to pay an amount of $ 98467 to Mourlas as compensation for the physical injury caused (Australasian Legal Information Institute, 2006). This jurisdiction was being challenged by the defendant and he appealed this decision in the higher court. Nonetheless, the appeal was rejected by the higher court on the basis that the risk vas not noticeable in this case and hence the defender is not liable for 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]