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.

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.

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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?

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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.

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Child Abuse Victims Stand Up for Legal Rights, Demand Compensation | BPC Law Blog

It’s been nearly a year since the Royal Commission into Institutional Responses to Child Sexual Abuse and it seems that very little has come out of it. The victims of child abuse, both sexual and non-sexual, have seen very little in return for the high status the inquiry was given. Many victims, and plenty of lawyers as well, have weighed into the debate surrounding what needs to be done and called for equitable compensation for victims. Under any other compensation law in Sydney and around Australia these people would have been compensated, but today they’re still waiting.

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Earlier last month approximately a dozen victims and victims advocates protested outside the front of the Department of Human Services in Melbourne calling for a compensation scheme specifically for victims of child abuse. There’s an overwhelming sense that the general Australian public is unaware of what victims of child abuse have gone through and therefore the move for compensation isn’t getting as much support as it could.

The Royal Commission has received a substantial amount of media coverage, particularly in regards to cases of child abuse of up to fifty or more years ago. Since the announcement of the Royal Commission, connections have been made between the allegations of child abuse and what appears to be a long-time cycle of disenfranchisement with victims often suffering from poverty, poor physical or mental health or even all three.

Such a strong correlation between childhood abuse and life-long hardship only goes to show how desperately a scheme for compensation is needed. Years of childhood abuse can leave a person feeling worthless, detached and emotionally unstable. Such issues have a tendency to seep into the individual’s relationships, work life and social life. It is reported that instances of suicide, unemployment and drug abuse are higher amongst victims of clerical childhood sexual or physical assault.

Each individual victim has endured a specific kind of struggle. Some families have lost love ones, some victims have lost jobs and some have simply lost hope, compensation is about atoning for the sins of clerics in the past and acknowledging the damage that has been done to lives of their victims. Compensation for victims of clerical abuse, that is purposefully designed to achieve a better quality of life for those victims, is about the nation, the church and the government apologising to those that suffered and pledging that it will never happen again.

The Law of Healing: Retrospective Compensation for Bali’s Terror Victims | BPC Law Blog

If you happen to walk down any Sydney street, you might be able to spot the person injured at work, or the one whose operation was botched, but what about the victims of terror attacks? Just because you can’t see the injury, doesn’t make it any less real. It’s a cause that’s been championed for some time, by compensation groups, communities and even politicians, and as of just over a fortnight ago, there’s now retrospective compensation for victims of terrorist attacks.

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The government has announced compensation for all Australian victims of terrorist attacks, which will include all terrorist attacks going as far back as September 11.

Under the scheme, which started on October 21 this year, victims of terrorist attacks will be able to claim up to $75,000 in compensation.

You could argue that this scheme has come incredibly late, but for many victims it will be a welcome relief. Though the scheme can’t change what the trauma and hardship these victims have suffered,  it can at least go some way to support the lives of those who’ve been affected, for instance children who’ve been left without parents or those who’ve been severely disabled as a result of terror attacks.

Current estimates suggest that the compensation scheme will help around 300 individuals, as well as their families. In total, this’ll cost about $30 million, a drop in the ocean when you consider what these people have gone through and will continue to go through. Also, Mr Abbott has ensured victims and compensation groups that the latest scheme will not prevent these victims from receiving any pre-existing benefits that they’re entitled to.