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 that before you take the plunge, metaphorically or literally, you understand your position and the duties owed to you by providers should you injure yourself during 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 which then results 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.

To learn more about how breach of duty is established in negligence cases, please read one of our previous articles.

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

Whether an activity is considered a dangerous recreational activity 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, even if they 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 racehorse 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.

Elon Musk names son “X Æ A-12” – Would this name be allowed by law in New South Wales?

Elon Musk names son “X Æ A-12” – Would this name be allowed by law in New South Wales?

With the recent announcement of SpaceX CEO Elon Musk and Canadian singer ‘Grimes’ naming their son “X Æ A-12”, many people are left confused regarding the legal constraints for naming children. It is common for celebrities and public figures to push societal bounds by naming their children unconventional names, but how far can one go until the name is rejected by the law?

Elon Musk and Grimes have changed ‘X Æ A-12’ to ‘X Æ A-Xii’ in an attempt to comply with Californian laws. However, despite the slight change, it is likely the name will still face issues in California as you can only utilise the 26 characters of the alphabet in a child’s name (excluding apostrophes for names such as O’Neil). Such restrictions call into question what would happen if such a situation were to occur in NSW. This article will address what you can and cannot name a child pursuant to NSW naming laws.

Child Naming Laws in NSW

Once a child is born, the parents must register within 60 days the child’s name with the NSW Registrar.  Under the Births, Deaths and Marriages Registration Act (‘the Act’), it is prohibited to give a child a name that:

  • is obscene or offensive;
  • is too long;
  • includes symbols without phonetic significance;
  • resembles an official title or rank, such as judge, saint, king, prince; or
  • is contrary to the public interest for some other reason.

Specific naming restrictions include:

  • The maximum length of a name, including spaces that can be registered is 50 characters each for the family name, first name and any other middle names.
  • Names cannot contain numbers or symbols, which includes roman numerals, prefixes or suffixes, such as the name “Anne Marie the 1st!”.
  • It is also not possible to register a name which bear a resemblance to a title, such as “Duke of Edinburgh Smith”. However, it is possible to register a name which has a title as a name such as “Edward Duke Smith”.

The state will not register a prohibited name, and can assign a name to a child if the name is a prohibited name, or where each parent lodges a birth registration statement because they are unable to agree on the child’s name.

Changing your child’s name following separation

Changing the surname of both child and spouse has been customary at marriage. Many women may choose to revert to their maiden name upon separation or divorce, however both parents must usually provide consent to change their child’s surname. An agreement can be reached privately or through alternative dispute resolution. The child must also consent to the change of name, unless they are unable to understand the meaning and implications of the change of name.

However, one parent can apply alone to change their child’s name if:

  • they are the only parent named on the child’s birth certificate; or
  • the other parent has passed away; or
  • a court has approved the new name for the child.

Changing Names

Names recognise your individual identity and are a significant part of your personal brand. If you are not happy with your name, in NSW you can only change your name once in a 12-month period, and three times in your lifetime.

You may apply to change your name if you are an adult (over 18 years old) and:

  • your birth is registered in NSW; or
  • you were born overseas and have been a resident in NSW for 3  years when you apply for the name change; or
  • your birth is not registered in NSW and a protection order has been made to protect you and/or your children from domestic violence.

Further Information

It is important to be aware of the laws surrounding name changes in NSW if you are considering changing your name or your child’s name. If you would like more information on how we can assist you with your matter, do not hesitate to contact us on 9963 9800 or via our contact form.

Protecting Your Assets During a Financial Crisis

Protecting Your Assets During a Financial Crisis

Disclaimer: The directives in this article relating to the COVID-19 pandemic may no longer be in force. Please use caution if you are citing legislative material from this article as laws are subject to change. We recommend that you seek the most up-to-date law.

This article has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, financial advice. We recommend that you should consult your own finance advisors before engaging in any transactions.

The COVID-19 pandemic has shocked the financial markets and created difficult situations for people who own assets that have fallen in value. In this article, we explore three tips that could help protect your assets and finances throughout the COVID-19 crisis, or other financial difficulties.

Protecting Personal and Family Assets

A discretionary trust (also known as a family trust) can be used to protect assets in the event of a financial crisis or bankruptcy. In a typical family trust, the trustee is under an obligation to hold property for the benefit of the beneficiaries. The trustee is the legal owner of the trust property and the beneficiaries hold an interest in the property. Therefore, if a beneficiary experiences financial hardship, trust assets are protected from the any creditors, as the beneficiary does not own the trust property.

It is common for family trusts to have a corporate trustee as this allows for particular tax benefits. It also means the trust can exist indefinitely, as there may be multiple directors appointed to control the trust.

However, there are many events that risk exposing the assets of a trust, including where loans are made from a family trust, when there are unpaid allocations of trust income and capital, and when companies are beneficiaries. Many deficiencies stem from a poorly constructed trust deed, therefore it is important to consult a legal professional to carefully draft a deed to ensure asset protection.

Protecting Business Assets

One of the greatest risks during economic downturns is that a business may become bankrupt, leaving both employees and directors vulnerable. Creating limited liability companies or corporations is the most common strategy to help protect your personal assets from the reach of creditors if your business becomes bankrupt. Businesses can also use the structure of a trust to protect assets that have value, such as machinery, equipment or intellectual property, to prevent them from being taken in the event of a lawsuit.

Professionals that are at risk of personal liability must be careful as the risk of insolvency and/or lawsuits frequently arises during a financial crisis. Thus, it is important to check your business and professional indemnity policies for inclusions and exclusions. One way you could protect yourself is to increase your professional and public liability policy premiums and cover more extensively the events that are likely to occur in the current environment.

Pension and Superannuation Funds

Most pension and superannuation funds allow you to shift your investments across different asset classes. As volatile market movements have resulted in falling share prices, shifting your investments could substantially reduce the current value of your portfolio. If you are older or rely on income from your fund, you could consider reducing the risk of your investments by shifting holdings from equities to bonds and cash. However, it is important to note that moving your investments could mean that you sell at a lower than usual price and therefore miss out on opportunities for future price increases. As such, some financial advisors may suggest to sit out of the market and wait until things blow over. If you are middle-aged or younger and will not need to rely on a fund income within the next ten years, attempting to time the markets is risky and rash decisions could lead to a loss in the potential future value of your assets. Many suggest that the key is to maintain a balanced portfolio that spreads risk across different asset classes to reduce your downside risk and also ensure exposure to upside risk when the market outlook improves.

Further Information 

If you would like more information on how we can advise you about trusts and protecting your assets, do not hesitate to contact us on 9963 9800 or at [email protected].