Recreational and Adventure Operators Protected from Liabilities

“Obvious Risk” saves Operators from Compensation Claims

compensation claims sydney

The possibility you’ll get hurt is all part of the charm, right?

Recreational and adventure operators can breathe a sigh of relief as a recent court decision helps protect them against liability charges.

For many, the thought of jumping out of a plane, firing paintballs throughout the Australian bushland or skiing down Perisher Blue’s frosty slopes is an exhilarating one; the physical exertion, the challenge of conquering your fears, the camaraderie built amongst mates and the rush of adrenalin that will leave you with stories for decades to come is enough to fork out the bucks for. But it has finally been recognised that we must face these fears with our eyes open to the fact that injury, even the possibility of death, is ever present.

In the case of Action Paintball Games v Barker, the defendant, Action Paintball Games, successfully appealed the awarding of damages of $280, 000 to a young plaintiff who had sustained injuries after tripping on a tree root whilst running. The child (under 10) had been spoken to by employees of Action Paintball, in the presence of her father, and warned that due to sticks and general debris that running was not advised.

Whilst the trial judge had found that tripping on a tree root was not an obvious risk in this case, as the child had never played laser tag before and the bush land she was playing in was not natural bushland, the Court of Appeals disagreed. They found that APG had issued a warning to the plaintiff and that there was no duty of care owed to her.

What this means for liability compensation?

Participants seeking  the thrills and spills of adventure and recreational activities must not expect to do so wrapped in cotton wool. ‘A balance must be struck, ensuring that operators provide a relatively safe experience, but not necessarily risk or injury free. Most people participate in organised sport on that understanding,’ writes Ross Donaldson, of Colin Biggers and Paisley.

The success in the Court of Appeals for Action Paintball is just one amongst a slew of recent cases demonstrating a growing trend towards pragmatism in the courts as opposed to restrictive measures.

This is good news for operators who feel the fear of their adventure activity centres being shut down, or sent into financial ruin, following legal actions. Whilst the definition of “Obvious Risk” will be open to some interpretation in the courts, operators can feel less burdened by the pressure of going through overly comprehensive risk assessments with patrons for fear of scathing litigation.

It’s important that both recreational and adventure operators and their patrons understand the risks involved with their activities. The recent crash, resulting in the devastating death of five skydivers at Caboolture, is a harsh reminder of the risks we take when we participate in such activities.

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A Guide to Dressing for the Courtroom

When it comes to dressing for court, how you look is extremely important.

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“First impressions last”
Image via Shutterstock

Wouldn’t it be nice if we lived in a world where judgements came solely from character? A world where clothes and personal appearances held little social weight? 

Sadly, that just isn’t the case.

Humans respond very strongly to visual stimuli and judgements are made in snap decisions. This is particularly seen in a courtroom where judgements might dramatically affect sentencing.

Because of this, here are the top ten things to remember when dressing for court:

1. Ditch the hat

It might seem obvious, but wearing a hat inside is considered ignorant and disrespectful. Don’t take the risk, leave your baseball cap at home.

2. Cover tattoos

Tattoos might be more accepted these days in pop culture but a judge 40 years your senior might not share this same liberal outlook. To be safe, hide all tattoos with clothes and makeup.

3. Grooming

Brush hair, brush teeth and iron clothes. Basically present the most neat and upstanding version of yourself. This is the one environment where your neatness is under the most scrutiny, so make that extra effort!

4. Minimise jewellery

Less is more when it comes to rings and necklaces. Judges aren’t impressed by how much “bling” you have and don’t approve of flashy earrings or bracelets. A wedding ring is okay but tone down the glamour…this is court, not the runway.

5. Abide by the dress code

This is our final and probably most important piece of advice when dressing for court: most courthouses will have a dress code and this information can easily be found on a website or by calling and asking. If you aren’t sure whether a suit is compulsory or sneakers are banned, then this is the best way to be sure.

What is Compensation Law?

The law can be a tricky thing to unfurl. To really help you get your head around things we try to regularly explain some of the fundamentals. Today we’re taking a quick look at compensation law – what it is and how it works.

Compensation Law

Workers compensation is a complicated thing.

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The WorkCover government website groups New South Wale’s workers compensation system into four key elements:

1.     ‘WorkCover Scheme – provides workers compensation insurance through contracted Scheme Agents to employers operating in New South Wales.

2.     SICorp (through the Treasury Managed Fund) – manages workers compensation, administration and financial liability for most public sector employers except those who are self-insurers.

3.     self insurers – organisations with enough capital to underwrite, pay and manage their own claims. There are strict criteria that employers must meet prior to WorkCover granting a self-insurers licence.

4.     specialised insurers – hold restricted licences to underwrite workers compensation insurance risk for a specific industry or class of business or employers.’

The current system operates through two previous acts, the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. Both acts are designed to assist and protect employees who have become ill or injured as a result of work activities, as well as employers facing litigation.

Worker Compensation may pay for your hospital and medical costs, along with your regular wages, until the time when you can work again. Your employer must be paying a premium in order for you to be covered. You are not automatically covered by Workers Compensation and not all employees are considered ‘workers’ under the relevant state or territory compensation laws. Prior to commencing any job potential employees should ask if they will be covered in the instance of a work-related injury.

The Government site for WorkCover describes that there are two roles in which it plays in the workers compensation scheme

‘WorkCover acts on behalf of the Nominal Insurer, which is the legal entity responsible for the performance of the WorkCover Scheme. The Nominal Insurer contracts Scheme Agents to deliver case management and policy services within the WorkCover Scheme. WorkCover also regulates and manages the workers compensation system, including the licensing of self and specialised insurers and oversight of service providers.’

Under NSW law, employers must have a workers compensation policy in place if they are paying in excess of $7500 in wages per annum, are employing an apprentice or trainee, or are a part of a group for premium purposes. These are businesses that are related entities paying over $600,000 in wages per annum.

If you require more information about workers compensation you should contact your state or territory’s workers compensation authority.

Obvious Risk: A Man Claims Compensation After Falling Down a Stairwell At a Sydney Ice Rink

Regardless of whether a person is clumsy or has a skewed view of their own skills there are times in life when accidents and injuries happen that could be, in a court of law, deemed a result of obvious risk. Take, for instance, the case of Moor v Liverpool Catholic Club, an ice skating rink in Sydney where Moor’s lawyer argued that he was entitled to compensation for his injuries.

Compensation

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The basic facts of the questioned incident are that Moor was wearing a pair of ice skating boots as he was about to begin skating. As Moor began to descend the stairs down to the ice rink he lost his footing and fell, fracturing his right ankle. The question that was then raised was is falling an obvious or inherent risk that comes with walking down stairs in ice skating boots.

When it came to working out whether walking down those stairs in ice skating boots was an obvious risk it was brought to the court’s attention that there was no warning or suggestion present from the actual club that doing such a thing would be dangerous. It was furthered argued that the fall wasn’t an obvious risk because CCTV footage showed that Moor wasn’t acting in a way that would’ve lead to a fall or injury, i.e. he was carefully walking down the stairs.

It might seem like an obvious risk to someone else that walking down a flight of stairs in a pair of shoes that aren’t made for walking could easily end badly, but the key to Moor receiving compensation was that the club hadn’t provided any warning or information to suggest that such a practice was dangerous. In the end, Moor received over $100,000 in compensation.

For information on achieving a successful compensation claim, see Being Honest to Get the Best Results: What You Need to Know About Workers Compensation.

Sydney Workers May Not Receive Compensation for PTSD

With over a100,0000 peopleworking in Sydney a psychiatric injury can be the undoing for any worker, whether it’s from being involved in a harrowing robbery to working the front line as a police officer. The definition of worker’s compensation covers all types of injuries, not just the ones you can see like a broken leg, so obviously a matter like PTSD doesn’t need a lawyer to get a worker’s compensation claim fulfilled, does it?

Compensation

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Joe Noonan is a former police officer suffering from PTSD after a series of very distressing incidents during the course of his time as a detective. He had a shotgun pointed at him in a situation where he genuinely feared for his life, he saw five deaths in one shift, he was shot at at close range, he was holding a colleague in his arms when they died of a gunshot to the head, along with many other situations that were either extremely distressing or that left him fearing for his life. If anyone’s entitled to compensation, it’d be Noonan, wouldn’t it?

Not so according to the County Court of Victoria and the Victorian WorkCover Authority. To receive compensation Noonan’s injuries would have to be classed as serious. Noonan argued that as a result of his job he suffered from post-traumatic stress disorder as well as depression, anxiety, panic disorder and nervousness, which all sounds like quite a handful. The judge found that Noonan’s symptoms couldn’t be considered severe enough to receive compensation as they didn’t meet the requirements of the severe injury test. But why?

The reason was that Noonan was quite a high-functioning person. His life now is quite good and he’s quite productive, which is what really what undid his case, though there is evidence that his experiences do still affect his life but it still wasn’t enough for the judge. Noonan attends to appeal this decision.

If you’d like to read more about worker’s compensation, check out How Facebook Can Kill Your Worker’s Compensation Claim.

Man Wants Compensation for Millions Lost Gambling Template

There are plenty of places to gamble in Sydney but surely the people who choose to enter them and gamble are entirely responsible for any and all the money they lose? Is it just rubbish to try and argue that a casino made you lose all your money and get compensation for it? Whatever you think, one man tried to do exactly that.

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Harry Kakavas went to the High Court to argue that Crown Casino victimised him and made him lose 20 million dollars over a year. He claimed that the casino knew he had a gambling problem and that they offered him incentives to go there, including the use of a private jet.

Kakavas could be classed as a high-roller, a businessman on the Gold Coast who would often make a turnover of about one and a half billion dollars. The life blood of casinos are high-rollers and so plenty of incentives are used to encourage them to come back time after time. Not only was Kakavas given private jet rides to take him from the Gold Coast to Crown Casino in Melbourne, he was also given free luxury accommodation, gift boxes of cash and one and a half million dollars in credit. That’s certainly a lot to just get one man down to play at the tables.

Originally he tried to argue a negligence claim against the casino but when that looked like it would fail he changed his argument to one regarding poor treatment of a consumer by breaching consumer laws. However, from Crown’s side they didn’t do anything wrong. They may have allegedly been aware of Kakavas gambling problem and history of law proceedings against other casinos but he did present to the casino each time as a man who could afford to gamble and, more importantly, afford to lose large amounts of money. He would often come to the casino and place initial deposits of up to a million dollars.

As a result of this appearance of capability, the High Court decided that there was not enough premeditated or predatory behaviour to suggest that Crown Casino had actually gone out of its way to get such a large sum of money off Kakavas. To be realistic, he was the one accepting the incentives and deciding to continue to gamble.

It’s not just casinos that get drawn into gambling-related compensation cases, have a read of A Gamble on Love: The Not So Happily Married Couple Could Find Themselves in Family Court if They Win Big on Lotto to find out more.

Crazy Compensation Claims from the Public Service Sector | BPC Law Blog

Not everybody who claims for compensation is as deserving, or even fits the parameters of that scheme of compensation, as others. In Sydney and around Australia, there have been plenty of bizarre compensation claims that would have seen even the most experienced compensation lawyer scratching their head in confusion. These are our top three:

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1.      Penis Problems: In March 2010, an obese public servant was on a flight for work. He claimed that he was forced to sit in a small, cramped seat for five hours and these conditions led to his genitals and the surrounding area to swell. His initial bid for compensation was rejected, so he tried again with the Administrative Appeals Tribunal. At this appeal he brought forth doctor’s notes that stated his penis had actually retracted into his fat folds, later developing into scrotal cellulitis, which can be life-threatening, and he suffered partial deafness as a result of taking antibiotics to treat it. The tribunal, however, felt that the flight didn’t contribute enough to the man developing the condition and dismissed the appeal.

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2.      Toilet Anxiety: In September 2010, a woman spent 20 minutes on the toilet at work as a result of diarrhea. In her workplace, she could only be away for a maximum of ten minutes without an explanation, so she had to explain to a colleague about her downstairs difficulties. She became quite embarrassed and anxious over the matter. A little while later, her work was called into question and she became more anxious, as well as developing headaches and finding it difficult to sleep at night. However, the Tribunal dismissed her appeal.

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3.      Free Fitness: A man claimed compensation for a workplace psychological injury that left him with a fear of people and strangers, though he’d found that working out at the gym helped. He was offered by Comcare a $750 gym membership, along with $480 worth of personal training support, although he tried to claim a full $16,000 which he’d spent on personal training. The Tribunal found that he’d overexaggerated his need for a personal trainer to help with his condition, meaning Comcare didn’t need to cover all his gym expenses.

Compensation Claims(image: Shutterstock)