Elliott v Bali Bungy Co - [2002] NSWSC 906

CITATION: Elliott v Bali Bungy Co [2002] NSWSC 906

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 20067/01

HEARING DATE(S): 09/09/02

JUDGMENT DATE: 1 October 2002

PARTIES :

Rebekah Jane Elliott (P)
Black Diamond Manufacturing Ltd (D8)

JUDGMENT OF: Young CJ in Eq

COUNSEL : A J Bartley SC and D R J Toomey (P)
J Glissan QC and M Ashhurst (D8)

SOLICITORS: McClellands (P)
Michael Samios (D8)

CATCHWORDS: PRIVATE INTERNATIONAL LAW [34]- Tort- Death of X and Y in Indonesia- Relatives hearing of death in NSW- Compensation to Relatives Act claims- Death may be due to faulty part manufactured in USA- Whether US manufacturer could be served. SALE OF GOODS [72]- Remedy of buyer- Goods containing latent defect- No opportunity for seller to become aware of defect- No liability. TORTS [31]- Negligence- Dangerous product- When retailer liable for selling product with latent defect.

LEGISLATION CITED: Compensation to Relatives Act 1897, ss 3, 6E
Supreme Court Rules Pt 10(1A)(1)(2)(6A), Pt 11(8)

CASES CITED: Agar v Hyde (2000) 201CLR 552
Annetts v Australian Stations Pty Ltd [2002] HCA 55
Blomme v Sutton (1989) 52 SASR 576
Burns Philp & Co Ltd v J Blackwood & Son Ltd (2000) 21 NSWCCR 96
Challenor v Douglas [1983] 2 NSWLR 405
W A Dewhurst & Co Pty Ltd v Cawrse [1960] VR 278
Flaherty v Girgis (1985) 4 NSWLR 248
Flaherty v Girgis (1987) 162 CLR 574
Hyde v Agar (1998) 45 NSWLR 487
Jaensch v Coffey (1984) 155 CLR 549
King v Phillips [1953] 1 QB 429
Koop v Bebb (1951) 84 CLR 629
Laundess v Laundess [1994] Aust Torts Rep 81-316
Lyles v Southend-on-Sea Corp [1905] 2 QB 1
Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383
Regie National des Usines Renault SA v Zhang (2002) 76 ALJR 551
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd (2001) 53 NSWLR 626
Sachs v Henderson [1902] 1 KB 612
The Brabo [1949] AC 326
Watson v Buckley [1940] 1 All ER 174
Woolworths Ltd v Crotty (1942) 66 CLR 603

DECISION: See paras 63-65.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

YOUNG CJ in EQ

Tuesday 1 October 2002

20067/01 - ELLIOTT v BALI BUNGY CO
20068/01 - ELLIOTT v BALI BUNGY CO
20069/01 - BURTON v BALI BUNGY CO
20070/01 - MACDONALD v BALI BUNGY CO
20071/01 – BAMBLETT v BALI BUNGY CO
JUDGMENT

1 HIS HONOUR: These reasons concern identical notices of motion filed in five sets of proceedings against the one defendant. The motions are a motion by the plaintiff filed 9 October 2001 for leave to proceed against the 8th defendant, Black Diamond Manufacturing Ltd (Black Diamond) and a motion filed 4 May 2001 by Black Diamond to set aside the statement of claim or the service thereof against Black Diamond.

2 The facts which I can assume for the purpose of the present motions are as follows. On 22 January 1998, at approximately 5.30 pm at Bali…

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: [2002] NSWSC 906
Decision Date: 1 October 2002

CaseChat Overview and Summary

The case of Elliott v Bali Bungy Co involved the relatives of two individuals who died during a bungee jump in Indonesia. The plaintiffs, who were relatives of the deceased, sought compensation under the Compensation to Relatives Act, having heard of the deaths in New South Wales. The defendants, Bali Bungy Co, were operators of the bungee jump site. The court was required to determine the jurisdiction to serve the manufacturer of a potentially faulty part from the United States, as well as the liability of the defendants for negligence.

The central legal issues were whether the court had jurisdiction to serve the US manufacturer and if the defendants could be held liable for selling a product with a latent defect. The court examined the circumstances under which the relatives could bring a claim in NSW, considering the Compensation to Relatives Act and relevant private international law principles. It also assessed the defendants' potential liability for selling a product with a latent defect, where there was no opportunity for the seller to become aware of the defect.

The court held that it did not have jurisdiction to serve the US manufacturer, as the potential defect did not arise from an act committed within NSW. Regarding the defendants' liability, the court found that there was no negligence on their part as they had no opportunity to become aware of the latent defect in the product. The court concluded that the defendants were not liable for selling the defective product under the circumstances.

The court made no orders against the defendants as it found no jurisdiction to serve the US manufacturer and no liability for the sale of the defective product. The plaintiffs' claims were dismissed.

Orders