Horsing Around: liability for personal injury in a dangerous recreational activity

Horsing Around: liability for personal injury in a dangerous recreational activity

Many people enjoy the adrenaline rush from extreme sports and thrill seeking activities. However it is essential before you take the plunge, metaphorically or literally, that you understand your position and the duties owed to you by providers should you injure yourself in a dangerous recreational activity.

The tort of negligence and personal injury

An action for negligence requires the Defendant’s failure to exercise due care and skill to result in a personal injury or damage to the Plaintiff. To claim an action for negligence under the Civil Liability Act 2002 (NSW), the plaintiff must establish on the balance of probabilities that:

  • The Defendant owed the Plaintiff a duty to take reasonable care;
  • The Defendant breached that duty by failing to take reasonable care;
  • The Defendant’s breach caused the injury or damage suffered by the Plaintiff; and
  • The injury or damage suffered was not too remote a consequence of the breach of duty.

Each element is discussed in further detail in our previous article.

It is important to note that an action for negligence will not succeed if the defendant can establish a defence, such as the dangerous recreational activity defence.

Dangerous recreational activity defence

Under the Civil Liability Act 2002 (NSW), the Defendant cannot be held liable for personal injury or damage suffered where the harm results from the materialisation of an obvious risk of a dangerous recreational activity engaged in by the Plaintiff. This will be true even if the Plaintiff was not aware of the risk when they engaged in the dangerous recreational activity.

1. Dangerous recreational activity

A recreational activity includes any sport, activity pursued for enjoyment, relaxation or leisure, or any activity pursued at a place, such as a beach, park or other public open space. A dangerous recreational activity is one that involves a significant risk of physical harm.

Whether a significant risk of danger is likely to materialise must be determined with consideration of all of the relevant circumstances. For example, riding a bike with training wheels on an even surface may not amount to undertaking a dangerous recreational activity, but an inexperienced rider on difficult mountain trails without proper supervision or safety equipment may meet these requirements. Factors including the time, place, competence, age, sobriety, equipment and weather have all been considered by courts to determine this question of fact.

2. Obvious risk materialisation

An obvious risk to the Plaintiff is one that, in the circumstances, would have been obvious to a reasonable person in the Plaintiff’s position. Obvious risks include those which are matters of common knowledge, and even those which have a low probability of actually occurring. A person need only be aware of the type or kind of risk for it to be considered obvious, not necessarily its precise manifestation in their particular circumstances.

An injured person is presumed to have been aware of obvious risks for engaging in the dangerous recreational activity, and as such there is no proactive duty to warn individuals of these obvious risks except if a relevant exception applies. This presumption exists unless the Plaintiff can establish on the balance of probabilities that they were not aware of the type or kind of obvious risk that caused their damage or personal injury.

Case Study: Lynch v Cavallo [2021] NSWSC 704

The Supreme Court of NSW recently approved a settlement in a personal injury matter in which a jockey (Lynch) was injured when he fell from his race horse and was injured by another jockey (Cavallo) during the Mudgee Cup.

Justice Adamson upheld the proposed settlement, deciding that the settlement in favour of Cavallo with no order as to costs was in Lynch’s best interests. Lynch had previously been involved in the case of Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152, in which he had been the Defendant, and the Court had upheld the defence of an obvious risk materialisation in a dangerous recreational activity in similar circumstances. The obvious risk in this previous case was held to be that the conduct of another rider could cause a fall resulting in personal injury or damage in the inherently dangerous recreational activity of horse racing. Relying on this authority, Justice Adamson upheld the proposed settlement as she believed Lynch’s negligence claim would be unsuccessful at trial.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide you with clarification of the relevant law and its relation to your individual circumstances. If you need further advice in relation to a negligence and personal injury matter, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Correcting your credit history for victims of fraudulent activities

Correcting your credit history for victims of fraudulent activities

Fraudulent activities, including identity theft or credit card theft are some of Australia’s most common crimes. As a victim of fraud, you may experience an unexpected dip in credit score as a result of subsequent late payments and high credit utilisation. The repercussions to your financial welfare may be overwhelming. Thankfully, there are various steps which can be taken to both prevent fraudulent activities from occurring and to correct your credit history if you have been a victim.

Fraudulent activities to watch out for

The two most common fraudulent activities are:

  1. Identity theft: when someone illegally obtains and uses your personal information and account details to use existing credit, or to complete fraudulent applications to open new credit in your name. Scammers can do this through electronic viruses or malware which collect your name, birthday, Medicare number or bank details.
  2. Credit card fraud: when someone steals and/or uses your credit card to engage in unauthorised transactions. This can also be done when someone skims your account details to use in card-not-present transactions or to create a duplicate counterfeit credit card, or even when someone intercepts a mailed out card.

Regulations that apply

The relevant laws which regulate the handling of personal information for consumer credit reporting in Australia are the Privacy Act 1988 (Cth) Part IIIA, the Privacy (Credit Reporting) Code 2014 (Version 2.1) and the Privacy Regulation 2013. These form a regulatory framework which aims to create a comprehensive credit reporting system which protects individuals from fraudulent activities. We have discussed the Privacy Act 1988 (Cth) in another article in relation to business obligations.

Protecting your credit history from fraudulent activities

It is important that while it is not your responsibility to pay back any credit used in fraudulent activities, you should act quickly to resolve the issue of fraud with your bank or financier first. There are a number of ways you can actively protect your credit history and minimise the damage caused by fraudulent activities:

  • Monitor your accounts, bank statements and credit reports regularly. If you discover any errors or unauthorised charges, immediately contact your credit providers and establish a fraud alert on your credit report so that other credit agencies are warned about the activity.
  • Apply a security alert on all of your accounts so that you can be quickly notified.
  • Change your online passwords and PINs regularly to protect your personal information. These passwords and personal information should also be kept in a secure location.

Further, if you discover that your credit card has been lost or potentially stolen, immediately notify the credit card issuer so they can put a block on the card. You should also report the crime to the police and document any communications you make with relevant credit providers or authorities regarding the matter.

Responding to fraudulent activities to correct your credit history

Request a ban

Under the National Consumer Credit Protection Act 2009 and Regulations, if you believe you are a victim of fraudulent activities, you may request that each of your credit reporting bodies (Equifax, Illion (formerly Dun and Bradstreet) and Experian) does not disclose your information in your consumer credit report. Each of these bodies will then place a 21 day ban period on your credit report, which may be extended if further investigation is needed.

Requesting and implementing this ban period will incur no charges. During this period, your information will not be disclosed unless you offer written consent or an Australian law, court or tribunal requires it. Credit providers who contact the reporting body seeking your credit history and information, will be informed of the ban and alerted to the potential fraud.

Make a credit report complaint

If you have been the victim of fraud, you may file a complaint about the information in your credit report with the relevant credit provider or credit reporting body. They should respond to the complaint within 30 days but if they don’t respond, or you are not satisfied with their response, then you may take the complaint to the relevant external dispute resolution (EDR) scheme.

If you are still not satisfied, or if you would prefer to complain directly to the regulator, you can lodge a written complaint to the Office of Australian Information Commissioner (OAIC), although, you should be made aware that the OAIC may refuse to investigate a complaint made more than 12 months after you became aware of the act or practice. Dispute mechanisms can be complex, and it is important to seek legal advice to fully understand your options when dealing with EDR schemes or formal complaints.

Contact Etheringtons Solicitors

With advancements in technology, identity theft and instances of fraud are becoming more sophisticated and are often difficult to trace. A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with contacting the relevant credit reporting bodies, your credit providers and assist with court preparations.

If you need further advice or assistance with an instance of fraud or other litigious matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form here.

Is Money From Family a Gift or a Loan When Separating?

Is Money From Family a Gift or a Loan When Separating?

It is becoming increasingly common that couples receive financial assistance from their parents. This can be through transfer of property, the giving of money or both. This assistance is becoming progressively prevalent due to rising prices within the property market which has meant that many couples are unable to enter the market without assistance from their parents. However, this can cause issues if the couple separates, as there can be a dispute as to whether the money provided was provided by way of a gift or a loan.

In a property settlement, the family law court can treat payments made by a parent to their child in two ways:

  • The court may find that the payment was a gift to the child which is not expected to be repaid.
  • The court may find that the payment is a loan from the parents that is to be repayable in full.

How does the family law court treat gifts?

In general, a court treats gifts from a parent as being for the benefit of their child alone. Because of this, when assessing entitlements, the court will apply such gifts  towards that spouse’s side of the ledger, when determining their entitlement. This would result in that spouse receiving an extra contribution as a result of the gift applied towards the relationship. However, if the intention was that the gift was to be provided to both parties to the relationship then it would be open for a spouse to contend that the gift is to be taken as an equal contribution of both parties.

How does the family law court treat loans?

If the money is determined to be a loan from the parents, the court must then determine whether the loan is legally repayable and in doing so, they must consider whether the loan is likely to be repaid in the foreseeable future. If the loan is unsecured, the court has discretion to either deduct the loan from the pool of assets or not. If the terms of the loan are vague or uncertain, the court is less likely to enforce the loan. Evidence about the loan determines how the loan is treated. If there is any oral or written evidence of the loan, and the parties have complied with the terms of the loan through actions such as making repayments, the court may be likely to uphold the existence of a loan. However, if there is little or no evidence that supports the claim that it was a loan, and there were no repayments made, the court would be less likely to uphold the existence of the loan.

Parents considering lending money to children who are married or are in a de facto relationship

If you are considering lending money to your child who is married or in a de facto relationship, it is important that there is documentation which adequately establishes that the money provided is to be treated as a loan.

The documentation can include:

  • A loan agreement that sets out the terms of the loan which is signed by all the parties involved
  • A mortgage over the property that secures the loan

Further to the documentation, it is important that the parties to the loan comply with its terms and obtain any appropriate legal advice. If, under the loan, repayments are to be made, they must be made or if payment of the loan is reliant on an event or after a particular time period which has passed, then a new loan agreement should be entered into.

Contact Us

If you have separated from your partner and your parents have lent you money and you are not sure whether it will be treated as a gift or a loan in court or you are wishing to lend money to your child who is in a relationship and you would like more information on how we can assist you in your matter contact us on 9963 9800 or by email to [email protected].

National Scams Awareness

National Scams Awareness

With technology becoming more accessible, intelligent and widely used, it is becoming increasingly important to ensure that your personal information and data is protected from scams. There has been a growth in the number of people online as a result of COVID-19 pandemic and this has caused a proliferation of scammers targeting personal information. This increase has led to a total financial loss estimated at $91m in 2020 so far.

Top Tips to Avoid Scams

The Australian Competition and Consumer Commission has put together its top five tips to help protect your personal information.

  1. Do not feel pressured to give your personal information away to someone who has contacted you.
  2. When receiving unexpected emails or messages, do not click on any links, even if it seems to have been sent by a legitimate source.
  3. Make sure to use strong passwords for all your accounts and your internet network.
  4. Install antivirus software on your computer and other devices and ensure that it is kept up to date.
  5. Limit the personal information that is shared about yourself online, even on social media.

Phishing Scams

There has been an increase of 44% in phishing scams this year alone. Phishing scams are the most common form of scam and it is where a scammer will pose as a legitimate institution such as government departments, banks, telephone companies and other businesses in order to collect personal details which they can use to access bank accounts, superannuation and apply for loans under the stolen identity.

Common features of phishing emails or messages to look out for are:

  • An offer that is too good to be true
  • A sense of urgency to respond to the message
  • Unusual hyperlinks within the message
  • Unexpected attachments
  • Unfamiliar sender

Get Legal Advice

If you think you have been scammed and need any assistance please don’t hesitate to get in contact with one of our lawyers via our contact form or call us on 02 9963 9800 for a no-obligation discussion.

More information on types of scams and how to protect yourself can be found here.

Scamwatch can also help if you wish to get help or to report a scam.

The Difference Between a Barrister and a Solicitor

The Difference Between a Barrister and a Solicitor

What Is the Difference Between a Barrister and a Solicitor?

Barristers and solicitors are both people who can assist with your legal matters. The difference between a barrister and a solicitor is the type of legal work they do. In general, a barrister specialises in making court appearances and speaking on your behalf. However, a solicitor often does the preparation work before your court appearance and liaises with the barrister. Barristers are formally trained in court advocacy and cross-examining witnesses.

In most cases, a solicitor will look after your case initially. They will then engage a barrister for court advice and appearances. Barristers do not liaise directly with clients.

When to Involve a Barrister in Your Matter

Clients often ask at what stage we will involve barristers in their matter.  A good way to think about it is that solicitors are like general practitioners and barristers are like specialists. Barristers work in particular areas of law and often speak at court.

Sometimes solicitors will discuss your case with a barrister and ask them to provide a written opinion on the prospects of your case. They might also ask their opinion on a specific issue. If a matter is complex or unusual, barristers might also be involved in the drafting of court documents.

Barrister Costs

Barristers are required to provide you with an estimate of their costs. Their costs agreement and disclosure documents are issued to your solicitor.

Barristers usually charge an hourly rate. They can also charge a daily rate, especially for court attendances or mediation sessions. Some barristers will charge a cancellation fee if a hearing settles or is adjourned.

Choosing a Barrister

You solicitor will choose a barrister based on factors including:

  1. Your financial circumstances;
  2. The type of matter; and
  3. Which barrister they believe is most suitable.

A barrister can be perfectly suited to one type of case but not another.

If you need any legal advice or assistance we are here to help. If you would like to discuss the involvement of a barrister in your legal matter contact us today.

Alternative Dispute Resolution: Mediation and Settlement Conferences

Alternative Dispute Resolution: Mediation and Settlement Conferences

Lawyers are often stereotyped as being interested in prolonging an expensive court action, however more often the opposite is true, due to the availability of alternate dispute resolution avenues such as mediation.

Lawyers know that court cases are expensive and that clients are fearful that legal costs could escalate to an intolerable level. Lawyers interested in preserving long standing relationships with their clients will often recommend alternative dispute resolution options. Mediation is one of those options.

There are various types of mediation

  1. Pre-litigation informed settlement, or a round table conference
  2. Informed settlement conference after the court proceedings have commenced without a mediator
  3. Courted ordered mediation with a mediator

What exactly is mediation?

Mediation allows parties to remain in control of their own disputes and outcome while facilitating parties to tell their side of the story to the other party and the mediator. It is conducted on a ‘without prejudice basis’ which means that whatever is said during the mediation is confidential and cannot be used in court against you. It rules out the uncertainty and risk of court litigation and allows the parties to make certain compromises to achieve a commercial outcome.   

Mediation is one form of alternative dispute resolution. Others include Early Neutral Evaluation, Expert Determination and Arbitration.

In essence, mediation is an informal conflict resolution process brought before an independent, neutral third party. Mediation gives the parties the opportunity to discuss their issues, clear up misunderstandings, and find areas of agreement in a way that would never be possible in a court case.

Mediation is often voluntary. Typically the mediator has no authority to make a binding decision unless both parties agree to give the mediator that power.  This is dealt with in advance of the mediation commencing. Mediators are accredited under the National Mediator Accreditation System.

When parties should consider mediation

In practical terms mediation is likely to be quicker and more cost-effective than the more formal processes of arbitration or litigation (in court). Mediation should be considered as early as possible after a dispute has arisen. It is particularly appropriate where a dispute involves complex issues and/or multiple parties.

In addition, mediation can be implemented prior to, or in conjunction with, other forms of dispute resolution such as arbitration or court proceedings.

In circumstances where privacy and confidentiality are important, mediation enables parties to preserve these rights without public disclosure. This often leads to more satisfactory outcomes for both parties.

Advantages of mediation

There are many advantages. In summary these can be described as:

You get to decide

The responsibility and authority for coming to an agreement remain with the people who have the conflict. The dispute is viewed as a problem to be solved. The mediator does not make the decisions, and you do not need to “take your chances” in the courtroom.

In doing this however, you need to understand your legal rights so that you can make decisions that are in your own best interests. It is very important to seek legal advice from a competent litigation lawyer so that you do not agree to an offer that is much less than you are entitled to.

The focus is on needs and interests

Mediation examines the underlying causes of the problem and looks at what solutions best suit your unique needs and satisfy your interests.

For a continuing relationship

Colleagues, business partners, and family members have to continue to deal with each other co-operatively. Going to court can divide people and increase hostility. Mediation looks to the future. It helps end the problem, not the relationship.

Mediation deals with feelings

Each person is encouraged to tell their own story in their own way. Discussing both legal and personal issues can help you develop a new understanding of yourself and the other person. You are encouraged to see things from the other person’s perspective.

Higher satisfaction

Participants in mediation report higher satisfaction rates than people who go to court. Because of their active involvement, they have a higher commitment to upholding the settlement than people who have a judge decide for them. Mediation ends in agreement about 80% of the time and has high rates of compliance.

Informality

Apart from court ordered mediation in a large court, for complex litigation in which parties would follow a set structure such as submitting position paper and a mediation bundle to the mediator ahead of the mediation, informal settlement conferences are less intimidating process than going to court. Since there are no strict rules of procedure, this flexibility allows the people involved to find the best path to agreement.  Although it is normal for any dispute resolution to be taxing emotionally, mediation is a process that is much less confronting and is conducted in a much more comfortable environment than litigation

Faster than going to court

Years may pass before a case comes to trial, while a mediated agreement may be obtained in a couple of hours or in sessions over a few weeks.

Lower cost

The court process is expensive and costs can exceed the benefits. It may be more important to apply that money to solving the problem, repairing damages, or paying someone back. Mediation services are available at low cost for some types of cases. If you can’t agree, other legal options are still possible. Even a partial settlement can lessen later litigation fees.

Privacy

Unlike most court cases, which are matters of public record, most mediations are confidential.

Where mediation is not the solution

With mediation, a resolution is not guaranteed. There is the potential that parties may invest time and money in trying to resolve a dispute out of court and still end up having to go to court. Ultimately, it is a call that should be made in consultation with an experienced lawyer.

Mediation should not be a solution in circumstances where it is not appropriate. For example, where a court remedy is necessary such as an injunction or seeking specific urgent court orders.

It must also be remembered that the mediator has no power to impose a binding decision on the parties. Therefore, even after the mediation the matter may be unresolved and you may still need to go to court.

Fundamentally, mediation rarely produces a satisfactory resolution unless all parties to a dispute are committed to a resolution.

Navigating the court system can be a financially and emotionally costly and time-consuming process. Mediation is an alternative. It is suitable for people who are willing to communicate with the other party and attempt to better understand and settle their dispute with the help of a trained third party.

To find out more call us on (02) 9963 9800 or contact us here.