Tragic injury, economics and justice

Life is uncertain and involves risk.  Some people like taking risks and some are more risk-averse.  Some people are risk-averse in some areas of their life (e.g. financially conservative) yet take risks in others (politically active and participates in protests and risks arrest).

Some people love taking physical and sporting risks.  Most noticeably, extreme sports, like rock climbing, downhill skiing and big wave surfing.  After years of practice, people develop their skills and back those skills and their judgement in participating.  How fast can I go into that hairpin corner on my motorbike?  Can I solo climb that rock wall without ropes?  Can I ride that 30’ wave?

Despite the skill and talent, accidents inevitably occur.  Sometimes claiming lives, sometimes with horrific and irreversible damage, such as quadriplegia or paraplegia.  Nothing can change that.  But these people’s lives change dramatically, and they need lots of medical support/intervention and ongoing care.  That all costs money.

If a person suffers this type of injury as a result of a car accident, then the compulsory personal injury insurance that comes with the vehicle registration will provide cover, up to predesignated limits.

If the tragedy occurs out in the surf or out on a mountain, then there isn’t such an obvious defendant or insurer to seek compensation from.  Plaintiff lawyers have often sought to sue someone to try to help provide for injured people.  Judges often receive bad raps in public discourse, such as the nuanced job of sentencing criminals is an easy target for media and public outrage over too lenient sentencing (and sometimes they are too lenient, but mostly they probably get it right).  In the civil cases seeking compensation for injured people, lawyers argue that a sign warning of the risks should have been erected, or the beach closed on that day.  Judges, seeing a plaintiff with apparent deep pockets or backed by an insurer on the one hand, and a tragically injured plaintiff on the other, have found some degree of negligence and awarded compensation.  Totally understandable on an individual case-by-case basis, and seemingly in keeping with our sense of compassion.

But the money has to come from somewhere, and premiums go up or insurance can’t be obtained.

A case in the 2000s changed the law in Australia.  A young man, presumably after a night of revelling on New Year’s Eve, went to go for a swim at Bondi beach early on New Year’s Day.  Possibly still under the influence of alcohol or other intoxicants.  He dived headfirst into a sand bar and suffered paraplegia.  His lawyers sued the local council seeking multi-millions of dollars compensation on the basis that signage should have pointed out the risk of diving into shallow sandbars to beach users.  This was potentially going to bankrupt the local council.  Governments and public sentiment considered that people who are participating in day to day activities, let alone extreme sports, need to accept personal responsibility for the inherent risks.  The law was changed to, broadly speaking, providing that people who participate in recreational activities can’t just sue somebody else if an accident inevitably happens.

For example, in New South Wales there is the Civil Liability Act 2002 (NSW).  That Act provides some defences to a claim for negligence:

  • Section 5L: “A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff”.
  • Section 5M: “A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff”.

 Some businesses are focussed on supplying specialised product to people who participate in extreme sports.  As part of their marketing, they organise events around these sporting activities.  For example, right now the Hawaiian surf season is running, including running in big waves over shallow reefs.  Event organisers try to protect themselves with various layers of protection, including having participants signing waivers of liability (that typically include a risk warning), having adequate public risk insurance and in Australia using the defences in these recreation activities laws.

 Judges have to apply the law.  Plaintiff’s lawyers still try to obtain compensation for their injured clients.  In a recent Australian case, a young woman participated in a horse-riding event and tragically suffered quadriplegia.  Her lawyer sued the event organiser, seeking to get around the recreational activity defences, including because there had been earlier injuries during the event and some participants thought the course was unsafe and requested the event organisers to call the event off.

The NSW Supreme Court held in November 2019 that, despite the circumstances, the young woman was participating in an inherently dangerous activity, unfortunately, the inherent risk came about and that a suitable risk warning had been given,  The judge, therefore, applied the defences and no compensation was payable (Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2019] NSWSC 1506).

This provides certainty for event organisers.  Unfortunately, there is still a young woman with very serious and permanent injuries (although she has gone on to compete as a Paralympian).

(It is worth noting that if the injured person had life insurance or total and permanent disability insurance as part of his or her superannuation, that some compensation may have been available through this.)

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