Action Paintball v Clarke

[2005] NSWCA 170

CITATION:	Action Paintball v Clarke [2005] NSWCA 170
HEARING DATE(S):	Friday, 6 May 2005
JUDGMENT DATE:	25 May 2005
JUDGMENT OF:	Handley JA at 1; Tobias JA at 2; Basten JA at 3
DECISION:	The appeal should be allowed, the judgment of the District Court set aside and judgment entered in favour of the Appellant. The Respondent should pay the costs of the Appellant in this Court and in the Court below, but in respect of the former to have a certificate under the Suitor's Fund Act, 1951, if otherwise qualified.

CATCHWORDS:	NEGLIGENCE - duty of care owed to player in paintball game - whether evidence sufficient to establish breach of duty of care - whether evidence sufficient to establish causation - TRADE PRACTICES - whether breach of section 74(1) of the Trade Practices Act 1974 - implied warranty that materials supplied are fit for their purpose - whether evidence sufficient to find materials supplied for paintball game not fit for their purpose - whether evidence sufficient to establish causation
LEGISLATION CITED:	Trade Practices Act 1974 (Cth) Suitor's Fund Act, 1951 (NSW)
CASES CITED:	Holloway v McFeeters (1956) 94 CLR 470 Rootes v Shelton (1967) 116 CLR 383
PARTIES:	Action Paintball Games Pty Ltd - Appellant Christopher Clarke - Respondent
FILE NUMBER(S):	CA 40431/04
COUNSEL:	R. A. Cavanagh - Appellant A. Lidden, M. Fraser - Respondent
SOLICITORS:	Curwood & Partners - Appellant Brydens Law Office, Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2413/02
LOWER COURT JUDICIAL OFFICER:	McLoughlin J

CA 40431/04
DC 2413/02

HANDLEY JA
TOBIAS JA
BASTEN JA

25 May 2005

ACTION PAINTBALL GAMES PTY LTD v CHRISTOPHER CLARKE

This is an appeal from the judgement of the District Court of 18 May 2004 which awarded damages to Mr Clarke for the injuries he suffered when he slipped during a game of paintball organised by Action Paintball Games Pty Ltd (Action Paintball). At the time of the accident it was raining heavily and the goggles supplied to Mr Clarke continually fogged up.

The District Court held that Action Paintball was liable in negligence and also liable under s74 of the Trade Practices Act 1974 for breach of the implied warranty that the materials supplied to Mr Clarke, including the goggles and the terrain, were fit for their purpose.

The issues for determination in the Court of Appeal included:

(i) whether Action Paintball breached its duty of care to Mr Clarke by allowing the game to be played in all the circumstances;

(ii) whether the goggles were fit for their purpose; and

(iii) whether the field on which the game was played was fit for the purpose for which it was used.

Per Basten JA (Handley and Tobias JJA agreeing):

Due to the paucity of evidence, Mr Clarke did not establish, on the balance of probabilities, that the conduct of Action Paintball in allowing the game to proceed was unreasonable and therefore in breach of its duty of care to the participants in the game.

Per…