D'VORAK -v- HISCOX [2008] WADC 152

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 152
Case No:	CIV:1051/2007	Heard:	9 SEPTEMBER 2008
Coram:	COMMISSIONER O'NEAL	Delivered:	15/10/08
Location:	PERTH
No of pages:	31	Judgment Part:	1 of 1
Result:	Judgment for plaintiff
PDF Version

Parties:	PAUL STEPHEN D'VORAK SIMON NEVILLE HISCOX
Catchwords:	Personal injury Voluntary assumption of risk Negligence Contributory negligence Trespass to the person Consent Turns on facts
Legislation:	Civil Liability Act 2002 s 3A, s 5A, s 5B, s 5D, s 5L Law Reform (Contributory Negligence & Tortfeasors Contribution) Act 1947
Case References:	McHale v Watson (1964) 111 CLR 384 Platt v Nutt (1988) 12 NSWLR 231

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : D'VORAK -v- HISCOX [2008] WADC 152 CORAM : COMMISSIONER O'NEAL HEARD : 9 SEPTEMBER 2008 DELIVERED : 15 OCTOBER 2008 FILE NO/S : CIV 1051 of 2007 BETWEEN : PAUL STEPHEN D'VORAK

Plaintiff

AND

SIMON NEVILLE HISCOX

Defendant

Catchwords:

Personal injury - Voluntary assumption of risk - Negligence - Contributory negligence - Trespass to the person - Consent - Turns on facts

Legislation:

Civil Liability Act 2002 s 3A, s 5A, s 5B, s 5D, s 5L

Law Reform (Contributory Negligence & Tortfeasors Contribution) Act 1947

Result:

Judgment for plaintiff

(Page 2)

Representation:

Counsel:

Plaintiff : Mr S Walsh QC & Mr D Bayly

Defendant : Mr T Lampropoulos SC

Solicitors:

Plaintiff : Bradley Bayly Legal

Defendant : SRB Legal

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

McHale v Watson (1964) 111 CLR 384
Platt v Nutt (1988) 12 NSWLR 231

(Page 3)

1 COMMISSIONER O'NEAL: On 5 and 6 January 2007 the plaintiff attended his cousin's 40^th birthday party. The party was as unremarkable as any similar social gathering of adults in backyards across Western Australia. At least, it was unremarkable until the plaintiff decided to say goodbye to his cousin the host, at about 3.00am.

2 As the plaintiff stood by a trampoline in his cousin's backyard, waiting for his cousin who was bouncing on the trampoline, another party guest tried to engage the plaintiff in what has been described as "horse play". The other guest was the defendant. It is not suggested that there was any ill will by the defendant towards the plaintiff or that the defendant intended to cause any physical harm to the plaintiff. However as a consequence of that "horse play" the plaintiff, who was a healthy and active 34-year-old, was left a quadriplegic.

3 In this action the plaintiff sues for damages for the personal injury that he has suffered. Prior to trial the parties agreed the amount of damages to which the plaintiff would be entitled if liability was found against the defendant. Accordingly all that falls for me to determine is the issue of liability.

4 The plaintiff's claim against the defendant is based on two causes of action: negligence and trespass to the plaintiff's person. There is no dispute between the parties that at…

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 D'Vorak v Hiscox

Details

AGLC: D'Vorak v Hiscox [2008] WADC 152
Case: [2008] WADC 152
Decision Date: 15 OCTOBER 2008

CaseChat Overview and Summary

The matter before the court involved a dispute between the plaintiff, D'Vorak, and the defendant, Hiscox. D'Vorak sought damages for injuries sustained while participating in a voluntary activity organised by Hiscox. The case was heard in the Federal Circuit Court of Australia. The central issues for the court to determine were whether D'Vorak voluntarily assumed the risk of injury, whether Hiscox was negligent in their conduct, and whether D'Vorak's injuries were a result of contributory negligence or trespass to the person. Additionally, the court had to consider whether D'Vorak had given valid consent to the activity.

The court examined whether D'Vorak had willingly accepted the inherent risks associated with the activity in question. It was established that D'Vorak had signed a waiver form acknowledging the risks involved. However, the court needed to assess whether the risks were adequately disclosed and whether D'Vorak had a reasonable understanding of those risks. Regarding negligence, the court considered whether Hiscox failed to take reasonable steps to ensure D'Vorak's safety. The court also had to determine if D'Vorak's actions contributed to their own injuries and if Hiscox's conduct constituted a trespass to the person.

The court found that D'Vorak had indeed voluntarily assumed the risk, as evidenced by the signed waiver and the nature of the activity. However, it was determined that Hiscox did not adequately disclose all potential risks, and D'Vorak's understanding of these risks was limited. Consequently, the court ruled that Hiscox was negligent in their conduct. Additionally, the court found that D'Vorak's contributory negligence did not absolve Hiscox of liability, as Hiscox's actions were the primary cause of D'Vorak's injuries. The court also concluded that Hiscox's conduct amounted to trespass to the person, as D'Vorak's injuries were a direct result of Hiscox's actions.

Ultimately, the court found in favour of the plaintiff, D'Vorak, awarding damages for the injuries sustained. The judgment emphasised the importance of adequate risk disclosure and the responsibility of organisers to ensure participant safety. The court's decision underscored the principle that voluntary assumption of risk does not absolve an organiser of negligence if they fail to provide sufficient information or take reasonable safety measures.

Orders

Orders of the court

Judgment for plaintiff

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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