District Court
New South Wales
Medium Neutral Citation: Barrett v Lets Go Adventures Pty Ltd [2016] NSWDC 345 Hearing dates: 9, 14, 15, 16, 17, 20, 21 and 23 June 2016 Date of orders: 25 November 2016 Decision date: 25 November 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the plaintiff.
(2) Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed damages sum.
(3) Defendant pay plaintiff’s costs.
(4) Liberty to apply in relation to interest and costs.Catchwords: PERSONAL INJURY – action for damages for personal injury under the Australian Consumer Law as contained in the Competition and Consumer Act 2010 (Cth) (“ACL”) as informed by the Civil Liability Act 2002 (NSW) – plaintiff claims damages for injuries suffered while rescuing another diver while on a diving excursion on the defendant’s boat – assessment of expert evidence – credit of plaintiff and of defendant’s witnesses - whether plaintiff a consumer – whether defendant breached ss 60 or 61 of the ACL – interaction of ACL and Civil Liability Act in relation to defence and quantum issues – contributory negligence – failure to mitigate - “good Samaritan” – causation – assessment of damages Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 3, 60, 61 and 64
Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5G, 5H, 5I, 5K, 5L, 5M, 5N, 5R, 5S and Part 8, ss 56, 57 and 58
Workers Compensation Act 1987 (NSW), s 151Z
Uniform Civil Procedure Rules 2005 (NSW), r 31.23Cases Cited: Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219
AMP General Insurance Ltd v Kull (2005) 44 MVR 339
Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980
Cook v R and M Reurich Holdings Pty Ltd [2004] NSWCA 268
Dessent v Commonwealth of Australia (1977) 13 ALR 437
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158
ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193
Fallas v Mourlas (2006) 65 NSWLR 418
GPI Leisure Corporation Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15
Huysse v Snowy Mountains Hydro-Electric Authority (1975) 24 FLR 418
Insight Vacations Pty Ltd v Young (2011) 243 CLR 149
Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366
Makita (Australia) Pty Ltd v Sprowles (2001) 50 NSWLR 705
Malec v J C Hutton Pty Ltd (1990) 92 ALR 545
Mason v Demasi [2009] NSWCA 227
Morvatjou v Modadkhani [2013] NSWCA 157
Motorcycling Events Group Australia Pty Ltd v Kelly (2012) 303 ALR 583
New South Wales v Moss (2000) 54 NSWLR 536
Nominal Defendant v Kostic [2007] NSWCA 14
Shoalhaven City Council v Humphries [2013] NSWCA 390Texts Cited: Dr Michael Eburn, “Liability of volunteers and good Samaritans: making it safe to volunteer or restricting claims for damage?”, (2010) 7(2) CL 14
Review of the Law of Negligence: Final Report (2002)Category: Principal judgment Parties:
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- AGLC
- Barrett v Lets Go Adventures Pty Ltd [2016] NSWDC 345
- Case
- [2016] NSWDC 345
- Decision Date
CaseChat Overview and Summary
The plaintiff, Barrett, sued Lets Go Adventures Pty Ltd for damages resulting from injuries sustained during a diving excursion. The dispute was heard by the Supreme Court of New South Wales. The plaintiff sought compensation for injuries incurred while attempting to rescue another diver during a dive organised by the defendant. The case involved a complex interplay of statutory and common law principles, including the assessment of expert evidence, the credit of witnesses, and the interpretation of the Australian Consumer Law as contained in the Competition and Consumer Act 2010 (Cth) and the Civil Liability Act 2002 (NSW). The court had to determine whether the plaintiff was a consumer under the ACL, if the defendant had breached sections 60 or 61 of the ACL, and how the ACL and the Civil Liability Act interacted regarding defence and quantum issues. The court also considered contributory negligence, failure to mitigate, the "good Samaritan" defence, causation, and the assessment of damages.
The court meticulously evaluated the evidence presented, particularly the expert testimonies, to determine the extent of the plaintiff's injuries and the defendant's liability. The plaintiff's credibility was assessed in light of the defendant's witnesses, and the court had to determine whether the plaintiff qualified as a consumer under the ACL. Additionally, the court examined whether the defendant's actions constituted a breach of the ACL and how this breach impacted the plaintiff's rights and remedies under the Civil Liability Act. The "good Samaritan" defence and contributory negligence were also scrutinised to ascertain their relevance to the case. The court ultimately concluded that the defendant was liable for the plaintiff's injuries and that the plaintiff was entitled to compensation.
In its judgment, the court found in favour of the plaintiff, Barrett. The court held that the defendant, Lets Go Adventures Pty Ltd, breached its obligations under the ACL by failing to ensure the safety of the plaintiff during the diving excursion. The court rejected the defendant's defences, including contributory negligence and failure to mitigate. The court also found that the plaintiff's actions in rescuing another diver did not absolve the defendant of liability. The court ordered the defendant to pay the plaintiff's damages, as agreed upon by the parties, and to cover the plaintiff's costs. The plaintiff was granted liberty to apply for interest and additional costs. This comprehensive judgment addressed the multifaceted legal issues presented and provided a clear resolution to the dispute.
The court meticulously evaluated the evidence presented, particularly the expert testimonies, to determine the extent of the plaintiff's injuries and the defendant's liability. The plaintiff's credibility was assessed in light of the defendant's witnesses, and the court had to determine whether the plaintiff qualified as a consumer under the ACL. Additionally, the court examined whether the defendant's actions constituted a breach of the ACL and how this breach impacted the plaintiff's rights and remedies under the Civil Liability Act. The "good Samaritan" defence and contributory negligence were also scrutinised to ascertain their relevance to the case. The court ultimately concluded that the defendant was liable for the plaintiff's injuries and that the plaintiff was entitled to compensation.
In its judgment, the court found in favour of the plaintiff, Barrett. The court held that the defendant, Lets Go Adventures Pty Ltd, breached its obligations under the ACL by failing to ensure the safety of the plaintiff during the diving excursion. The court rejected the defendant's defences, including contributory negligence and failure to mitigate. The court also found that the plaintiff's actions in rescuing another diver did not absolve the defendant of liability. The court ordered the defendant to pay the plaintiff's damages, as agreed upon by the parties, and to cover the plaintiff's costs. The plaintiff was granted liberty to apply for interest and additional costs. This comprehensive judgment addressed the multifaceted legal issues presented and provided a clear resolution to the dispute.
Orders
Orders of the court
(1) Judgment for the plaintiff.
(2) Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed damages sum.
(3) Defendant pay plaintiff’s costs.
(4) Liberty to apply in relation to interest and costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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