What happened

Four men went spotlighting for kangaroos at night, with the plaintiff seated in the front passenger seat operating the light. The defendant returned to the vehicle with a jammed handgun, repeatedly assured him that it was unloaded and safe, then manipulated it while it pointed towards the plaintiff; it discharged and caused a serious leg injury.

The issues

The appeal concerned how specifically to define the recreational activity, whether it involved a significant risk of physical harm, and whether this shooting was the materialisation of an obvious risk of that activity. The court also addressed the defendant’s burden of proving each element of the statutory defence.

The court's decision

Ipp JA considered the particular activity dangerous but held that the risk created by the defendant’s extreme negligence, despite repeated safety assurances, was not obvious. Basten JA regarded accidental discharge as potentially obvious but found that the defendant had not proved either a significant risk on the evidence or that the risk which materialised was a risk of the hunting activity; together those conclusions produced a majority dismissal of the appeal.

Understanding the figures

The trial judgment for the plaintiff was AUD 98,467. The appeal was dismissed with costs, leaving that historical award in place.

What this case shows

The decision is a leading illustration of the need to identify both the activity and the materialised risk at an appropriate level of particularity under ss 5F, 5K and 5L. Participation in a broadly risky pastime does not automatically immunise every negligent act, especially where the injury may arise from conduct or a risk insufficiently connected with the activity as proved.

Why another case may differ

The three judges differed materially on significant risk, obvious risk and the scope of the activity, so the case should not be reduced to a single broad rule about firearms or recreation. Its outcome depended on the unusual combination of night hunting, participant experience, the confined vehicle, a jammed handgun, repeated warnings and repeated assurances.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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