Cafest v Tombleson

[2003] NSWCA 210

CITATION:	Cafest v Tombleson [2003] NSWCA 210
HEARING DATE(S):	11/06/03
JUDGMENT DATE:	1 August 2003
JUDGMENT OF:	Meagher JA at 1; Sheller JA at 20; Ipp JA at 21
DECISION:	1. Appeal allowed; 2. Judgment and verdict below set aside; 3. In lieu thereof, verdict for the defendant (appellant); 4. Order the respondent to pay the appellant's costs of trial and of the appeal, but to have a certificate under the Suitors' Fund Act 1951.
CATCHWORDS:	NEGLIGENCE - Reasonableness - Want of reasonable care.
CASES CITED:	Agar v Hyde (2000) 201 CLR 552 Woods v Multisport Holdings Ltd (2002) 76 ALJR 483 Tame v New South Wales (2002) 76 ALJR 1348
PARTIES :	Cafest Holdings Pty Limited t/as Skateplus v Julianne Tombleson
FILE NUMBER(S):	CA 40544 of 2002
COUNSEL:	A: C R R Hoeben SC & M R Heath R: G Miller QC & Colin Cook
SOLICITORS:	A: Colin Biggers & Paisley R: Lyons & Lyons

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1634 of 2000
LOWER COURT JUDICIAL OFFICER :	Robison DCJ

CA 40544 OF 2002

MEAGHER JA
SHELLER JA
IPP JA

Friday, 1 August 2003

CAFEST HOLDINGS PTY LIMITED T/AS SKATEPLUS v JULIANNE TOMBLESON

FACTS
The respondent (the plaintiff below) had fallen over and broken her right wrist while skating in the appellant’s (defendant’s) roller-skating rink. She was an active sportswoman, but had no previous experience of roller-skating.

At trial, Robison DCJ entered a verdict and judgment in her favour, whereupon the defendant appealed to this Court.

HELD per Meagher JA (Sheller and Ipp JJA agreeing), allowing the appeal:

The appellant’s failure to eliminate the risk to the respondent was not demonstrative of a want of reasonable care for the respondent ( Tame v New South Wales (2002) 76 ALJR 1348, applied).

ORDERS

i. Appeal allowed;

ii. Judgment and verdict below set aside;

iii. In lieu thereof, verdict for the defendant (appellant);

iv. Order the respondent to pay the appellant’s costs of trial and of the appeal, but to have a certificate under the Suitors’ Fund Act 1951.

CA 40544 OF 2002

MEAGHER JA
SHELLER JA
IPP JA

Friday, 1 August 2003

CAFEST HOLDINGS PTY LIMITED T/AS SKATEPLUS v JULIANNE TOMBLESON

Judgment

1 MEAGHER JA: This is an appeal by a defendant, the present appellant, against a verdict and judgment of Robison DCJ given in favour of a plaintiff, the present respondent, in the sum of nearly $350,000.

2 The plaintiff had fallen over and broken her right wrist severely when trying to skate in the appellant’s roller-skating rink. On 13 March 1999 she had taken her daughter there for a birthday party and decided to “have a go”. She was an active sportsman, and had previous experience of ice-skating; however, she had no previous experience of roller-skating.

3 She went to the counter and bought a ticket from a young man behind the counter. She said to him “I have never skated before, what’s the best type of skate to use and do I…