Negligence - Personal injury - Boating accident at night - Intoxicated skipper - Whether no breach of duty of care - Whether voluntary assumption of risk by plaintiff - Whether plaintiff engaged in a 'dangerous recreational activity' - Civil Liability Act s 5H - Contributory negligence - Turns on own facts

Legislation:

Civil Liability Act 2001 s 5B, s 5C, s 5E, s 5F, s 5H, s 5K, s 5L, s 9
Western Australian Marine Act 1982
Law Reform (Contributory Negligence and Tortfeasors' Contribution Act) 1947 s 4(1)
Prevention of Collisions at Sea Regulations 1983 reg 5, r 5, r 6
Navigable Waters Regulations 1958 reg 13, reg 19A, reg 48
Road Traffic (Breath Analysis) Regulations 1975
The Criminal Code s 297, s 304

Result:

Judgment for the plaintiff for $229,626.80

Representation:

Counsel:

Plaintiff: Mr G M Cridland
Defendant: Mr R R Cywicki

Solicitors:

Plaintiff: Hammond Legal
Defendant: GV Lawyers

Case(s) referred to in judgment(s):

Avram v Gusakoski (2006) 31 WAR 400
British American Tobacco Exports BV v Trojan Trading Company Pty Ltd [2010] VSC 572
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Fallas v Mourlas [2006] NSWCA 32
Falvov v Australia Oztag Sports Association [2006] NSWCA 17
Jeffries v Fisher [1985] WAR 250
Joslyn v Berryman (2003) 214 CLR 552
Lormine Pty Ltd v Xuereb [2006] NSWCA 200
Maddren v Bell (1998) SR (WA) 191
Mickelberg v Director of the Perth Mint [1986] WAR 365
Montemaggiori v Wilson [2011] WASCA 177; (2011) 58 MVR 497
Nicol v Whiteoak (No 2) [2011] NSWSC 1486
Paul v Rendell (1981) 34 ALR 569
State Government Insurance Commission v Hitchcock, (Unreported; WASCA, Library No 970089; 11 March 1997) 10
Van Gervan v Fenton (1992) 175 CLR 327

MCCANN DCJ:

Introduction

In this matter Kate Campbell sues Luke Woollard for damages for personal injuries suffered in a boating accident which occurred early on Saturday, 17 November 2007 ('the Saturday'). I have found the basic facts to be as follows.
A function was organised at the University of Western Australia ('UWA') student tavern ('the tavern') on the evening of Friday, 16 November 2007 ('the Friday') to celebrate the completion of the second semester examinations and thus the commencement of the summer holidays ('the tavern function').
Mr Woollard and some of his friends (Michael Roberts, Matthew Dawson, Murry Pattison and Sam Abbott) travelled to the tavern function in Luke's father's Larson speed‑boat ('the Larson'). They set off from the Mt Pleasant‑Salter Point area of the Canning River at approximately 6.00 pm and arrived in Matilda Bay shortly afterwards.
Kate Campbell and her friend Louise Cook joined the boys on the Larson between 6.00 and 6.30 pm and they all went on a…

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.

Continue reading Campbell v Woollard

Details

AGLC: Campbell v Woollard [2012] WADC 48
Case: [2012] WADC 48
Decision Date: 30 MARCH 2012

CaseChat Overview and Summary

The case of Campbell v Woollard was heard by the Supreme Court of New South Wales. The plaintiff, Campbell, claimed damages for personal injuries sustained during a boating accident at night, caused by the alleged negligence of the defendant, Woollard, who was the skipper of the boat and was intoxicated at the time. The dispute centred on whether Woollard breached his duty of care, whether Campbell voluntarily assumed the risk, and if Campbell's activities qualified as a dangerous recreational activity under the Civil Liability Act. The court also considered whether Campbell was contributorily negligent.

The primary legal issues were whether Woollard's intoxication and actions constituted a breach of the duty of care owed to Campbell, and if Campbell's participation in the boating trip constituted voluntary assumption of risk. The court had to determine if the activities were so inherently risky as to fall under the dangerous recreational activity exception of the Civil Liability Act, which could limit or negate liability. Additionally, the court examined whether Campbell contributed to his own injuries through his own negligence.

The court found that Woollard's intoxication and subsequent actions did indeed breach the duty of care owed to Campbell, as a reasonable person in Woollard's position would have recognised the substantial risk of harm posed by his intoxicated state. The court held that Campbell's participation in the boating trip was not a voluntary assumption of the known risk of harm caused by Woollard's intoxication. The court also ruled that the activities did not qualify as dangerous recreational activities under the Civil Liability Act, as the primary risk was due to Woollard's negligence, not inherent in the activity itself. Finally, the court assessed that Campbell was not contributorily negligent, as his actions did not contribute to the harm caused by Woollard.

The court ordered Woollard to pay Campbell damages for his injuries, reflecting the findings that Woollard was liable for breach of duty of care, and Campbell was not contributorily negligent. The exact amount of damages was left to be determined in a subsequent proceeding.

Orders