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Fallas V Mourlas: Materialization

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Discuss about the Fallas v Mourlas for Materialization.




Fallas v Mourlas [2006] NSWCA 32 is a landmark case in the matter of dangerous recreational activity, as well as, materialization of an obvious risk. In the following parts, the arguments have been made from the Defendant (Alexander Fallas) side.

Facts of the Case 

The plaintiff as well as the defendant, along with two other people, got in the vehicle and drove in the bushes to look for for kangaroos, at around 10:30 in the night. The defendant himself was driving the said vehicle, while the plaintiff was sitting in the seat of front passenger. And the plaintiff was holding a spotlight. The vehicle stopped after some time and the defendant, along with the two other men, got out of the vehicle. During this time, Mr. Mourlas (the plaintiff) continued driving. Mr. Fallas (the defendant) reentered the vehicle while holding the gun, even though Mr. Mourlas had asked him to not to enter this vehicle with a loaded weapon. Mr. Fallas reassured the plaintiff that the weapon was empty and not loaded. In an effort to un-jam the gun, Mr. Fallas clocked the gun back and forth, and accidentally discharged the weapon and as a result, the plaintiff got shot in the leg, and sustained injuries (Blue, 2010).


Arguments as the Defendant 

The defendant had negligently fired his gun which resulted in an injury to the plaintiff. As this is the case of negligence, the defendant would like to bring to the notice of the court the section 5L of the Civil Liability Act, 2002. This section contains that an individual is not held accountable for a negligence, which results in harm to the other person, when such other person engages in an activity, which is a dangerous recreational activity, and which has an obvious risk, due to materialization of such obvious risk. Further, this section states that this section is applied on the plaintiffs irrespective of the fact, that the aggrieved party was aware about the risks or not (Australasian Legal Information Institute, 2015).

Section 5K defines the meaning of dangerous recreational activity as such a recreational activity which has major chances of resulting in a physical harm. Such recreational activity contains any type of sport; or such activity which is undertaken for relaxation, leisure, or enjoyment purposes; any such activity at a place, where normally people are engaged in such activities, for the purpose of relaxation, leisure, or enjoyment. And, Section 5F defines obvious risk as a risk which is a matter of common knowledge. A risk is obvious, even though there are very less chances of occurrence of such risk, as well, as, when such risk is not prominent (Australasian Legal Information Institute, 2015).

The plaintiff (Mr. Mourlas) here was engaged in a dangerous recreational activity, where a risk of physical injury was present (Cormack, 2015). Section 5L clearly provides that it does not matter if the plaintiff is aware about such risk. In such cases, the plaintiff cannot hold the defendant liable for the resulting injury. Further, in these circumstances, there was a presence of risk when the men left the vehicle with loaded guns, while Mr. Mourlas was operating the said spotlight. This was due to the reason that the loaded gun could be handled in a negligent manner and can result in someone to getting shot. Mr. Mouralas was aware about the loaded guns and hence, he knew that there was a significant risk of physical harm, which was caused as a result of engaging in the dangerous recreational activity.

Here, Mr. Mouralas cannot claim that he was not engaged in the dangerous recreational activity merely because he was he was not holding a gun and instead held the spotlight. He went on the ride to engage in the dangerous recreational activity of shooting the kangaroos at night. Hence, this claim of the plaintiff is completely wrong (PACI, 2006).

Now the defendant would like to highlight the obvious risk of this activity. Here, even though the risk of getting shot was not prominent, but such risk was nonetheless present. Any prudent person in place of Mr. Mourlas would have been aware about the reassurances of Mr. Fallas regarding the safety of the gun and the gun not being loaded, when Mr. Mourlas was clearly fiddling with the gun continuously, and this indicated that the gun was jammed. This happened within the vehicle and so, the risk was obvious. Here, Mr. Fallas fulfilled the requirements stated in Section 5L (1) and would not be liable for the negligence which resulted in injuries to Mr. Mourlas (Australasian Legal Information Institute, 2006).

Further, the Court should also notice that all the participants had consumed alcohol and this contributed to the dangerous of the recreational activity. The alertness, as well as, the ability to focus was not at the finest level in such case (Australasian Legal Information Institute, 2006). Also, statistics clearly show that there are high chances of accidental shootings on the hunting expeditions. So, the risk was obvious here. For novices, the risks of such accidental shootings are high. Even though Mr. Fallas was the only licensed shooter amongst the group, none of the men in the group were experienced at shooting. So there was presence of significant risk of physical harm in this case. This means the activity is covered within the purview of Section 5K and is a dangerous recreational activity.


At the trial of this case, Mr. Fallas was held responsible in negligence for the damages that resulted to the plaintiff. The Judge, Quirk DCJ, upheld the claims of the plaintiff and found the defendant as negligent. The judge did not accept the contention that the plaintiff was engaged in a dangerous recreational activity covered under Section 5K. Further, she held that the harm that Mr. Mourlas suffered was not a result of an obvious risk, arising out of a dangerous recreational activity. And so, the judge declined the defense available as per section 5L. And the plaintiff was awarded damages in the sum of $98,467 (Australasian Legal Information Institute, 2006). The Defendant appealed in the court against this decision but the appeal was dismissed with costs, on the basis of the risk not being obvious, and the plaintiff not being engaged in a dangerous recreational activity.



Australasian Legal Information Institute. (2006) Fallas v Mourlas [2006] NSWCA 32 (16 March 2006). [Online] Australasian Legal Information Institute. Available from: [Accessed on: 27/09/16]

Australasian Legal Information Institute. (2015) Civil Liability Act 2002. [Online] Australasian Legal Information Institute. Available from: [Accessed on: 27/09/16]

Blue, K. (2010) "Dangerous Recreational Activity and Materialisation of an Obvious Risk": Fallas -v- Mourlas [2006] NSWCA 32. [Online] Curwoods Lawyers. Available from: [Accessed on: 27/09/16]

Cormack, D. (2015) CLA: Dangerous Recreational Activity Not Necessarily an Obvious Risk. [Online] Barrister. Available from: [Accessed on: 27/09/16]

PACI. (2006) Supreme Court of New South Wales - Court of Appeal Decisions: Fallas v Mourlas [2006] NSWCA 32 (16 March 2006). [Online] PACI. Available from: [Accessed on: 27/09/16]

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