Arsalan v Rixon; Nguyen v Cassim - [2021] HCATrans 143

[2021] HCATrans 143

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S35 of 2021

B e t w e e n -
AHYA-UD-DIN ARSALAN
Appellant
and
ALEX RIXON
Respondent

Office of the Registry
Sydney No S36 of 2021

B e t w e e n -
DYLAN NGUYEN
Appellant
and
AZAD CASSIM
Respondent

KIEFEL CJ
GAGELER J
KEANE J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON WEDNESDAY, 8 SEPTEMBER 2021, AT 10.01 AM

____________________

KIEFEL CJ: The record will show that Justices Keane, Edelman and I are sitting in Brisbane, Justice Gageler in Sydney and Justice Steward in Melbourne. In accordance with the remote hearing protocol, I will announce the appearance of the parties.

MR J.T. GLEESON, SC appears with MR S. HABIB, SC , MR K.G. OLIVER and MR R.J. MAY for the appellant in each case. (instructed by MCK Lawyers)

MR B.W. WALKER, SC appears with MR J.L. GRUZMAN, MR G.E.S. NG and MR W.R. RICHEY for the respondent in each case. (instructed by Spectre Law)

KIEFEL CJ: Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours, and good morning. The core issue in the appeal, expressed generally, concerns the correct method by which damages are to be assessed where a claimant suffers, by the negligence of the defendant, a temporary loss of use of a non‑income producing chattel, in this case a motor vehicle, during the period in which the vehicle is under repair and the claimant can establish a need to use a vehicle and the claimant has actually hired a substitute.

Your Honours, while that is the general issue, we have sought in our first and second propositions to make it more precise by reference to the findings of fact made in the Local Court in each case and, secondly, the question of law which was the subject of the appeal to the Supreme Court. This was an appeal solely on a question of law and so it is important to understand precisely what question that was that came before Justice Basten.

Your Honours, to deal with those matters, could I ask you to go to the book of further materials in S35, and then to the core appeal book in S35. At page 8 of the book of further materials - this is in the Arsalan v Rixon matter - the magistrate at paragraphs 2 and 3 on page 8 identified the issue between the parties as to whether the compensation was:

for the hiring of a like car or whether the quantum of the hiring of a replacement vehicle should be limited to the reasonable cost of hire of a suitable vehicle to compensate for the loss of use of his car.

That is at the end of paragraph 2 and at the end of paragraph 3 it is expressed slightly differently. The alternative is:

the reasonable cost of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] HCATrans 143
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals from the Court of Appeal of the Supreme Court of New South Wales in two separate matters, *Arsalan v Rixon* and *Nguyen v Cassim*. Both cases concerned the application of the *Civil Liability Act 2002* (NSW) and, in particular, the interpretation of section 5L, which deals with the defence of an obvious risk of a dangerous recreational activity. The central dispute in both appeals revolved around whether the plaintiffs had been adequately informed of the risks involved in the activities they undertook, and whether those risks were "obvious" for the purposes of the statutory defence.

The primary legal issue before the High Court was to determine the correct interpretation of section 5L of the *Civil Liability Act 2002* (NSW), specifically the meaning of "obvious risk" and the requirements for a defendant to establish the defence. This involved considering the nature of the recreational activities, the knowledge of the plaintiffs regarding the risks, and the defendant's duty to warn. The court was required to clarify the scope of the defence and its application in circumstances where a plaintiff suffers injury during a recreational activity.

In its joint judgment, the High Court clarified that an "obvious risk" is one that is "not insignificant". The court held that the defendant bears the onus of proving that the risk was obvious. Crucially, the court found that section 5L does not require a defendant to prove that the plaintiff was aware of the specific risk that caused the injury, but rather that the risk was obvious to a reasonable person in the position of the plaintiff. The court further explained that the defendant must establish that the plaintiff was aware of the *possibility* of the risk, even if the plaintiff did not appreciate the *probability* or *severity* of that risk. The court allowed the appeal in *Arsalan v Rixon* and dismissed the appeal in *Nguyen v Cassim*, finding that the defence under section 5L was made out in the former but not the latter.

Orders