Gharibian v Propix Pty Ltd

Case [2007] NSWCA 151
Reported Decision: (2007) ATPR 42-171
Appeal Outcome: Special leave refused with costs by the High Court - 16 November 2007

New South Wales


Court of Appeal


CITATION: Gharibian v Propix Pty Ltd, trading as Jamberoo Recreational Park [2007] NSWCA 151
HEARING DATE(S): 7 June 2007
 
JUDGMENT DATE: 
22 June 2007
JUDGMENT OF: Mason P at 1; Ipp JA at 7; Tobias JA at 81
DECISION: (a) Appeal upheld; (b) judgment of Balla DCJ set aside; (c) verdict and judgment in favour of the appellant on the issue of liability; (d) proceedings remitted to the District Court for the determination of the appellant’s damages; (e) the respondent to pay the appellant’s costs of the trial and the appeal; and (f) the respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.
CATCHWORDS: TRADE PRACTICES – warranties in relation to the supply of services (Trade Practices Act 1974 (Cth), s 74) – materials supplied in connection with the supply of such services – whether there existed a contract between the appellant and the respondent whereby the respondent undertook to supply recreational services to the appellant – the supply of materials (a toboggan run and a toboggan) in connection with such recreational services – whether such materials were reasonably fit for the purpose for which they were supplied, namely, to undertake the toboggan run safely when operated by any member of the general public - TORTS – negligence – duty of care – breach – whether the respondent, the operator of the toboggan run, breached its duty of care to the appellant – the issue of breach turns only on factual questions
LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Suitors’ Fund Act 1951 (NSW)
Trade Practices Act 1974 (Cth)
ss 52
53(a)
53(c)
68
68B
74
CASES CITED: Ashington Piggeries Limited v Christopher Limited [1972] AC 441
R & B Brokers Limited v United Dominions Trust Limited [1988] 1 WLR 321
Rushes Pty Ltd v Thomas (Unreported
New South Wales Court of Appeal
9 May 1990)
Slater v Finning Limited [1997] AC 473
PARTIES: Simin Gharibian - Appellant
Propix Pty Ltd, trading as Jamberoo Recreational Park - Respondent
FILE NUMBER(S): CA 40367/06
COUNSEL: CS Leahy SC - Appellant
MC Gilbert - Respondent
SOLICITORS: Ron Kramer Associates - Appellant
Sparke Helmore Lawyers - Respondent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 1643 of 2004
LOWER COURT JUDICIAL OFFICER: Balla DCJ
LOWER COURT DATE OF DECISION: 26 May 2006



                          40367/06

                          MASON P
                          IPP JA
                          TOBIAS JA

                          Friday 22 June 2007
Simin Gharibian v Propix Pty Ltd, trading as Jamberoo Recreational Park
Judgment

1 MASON P: I have had the benefit of reading the judgments of my colleagues.

2 I agree with Ipp JA, adding the following remarks as to the point of disagreement.

3 The question of negligence is evenly balanced in my mind, but I remain unpersuaded that the trial judge erred in acquitting the respondent of breach of any tortious or contractual duty of…

Continue reading Gharibian v Propix Pty Ltd

Sign in free to access the full text

Details
AGLC
Gharibian v Propix Pty Ltd [2007] NSWCA 151
Case
[2007] NSWCA 151
Decision Date

CaseChat Overview and Summary

The appellant, Mr. Gharibian, brought proceedings against the respondent, Propix Pty Ltd, concerning injuries sustained while using a toboggan run. The dispute centred on whether the respondent had breached its contractual obligations and/or its duty of care to the appellant. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the respondent had supplied services in contravention of section 74 of the *Trade Practices Act 1974* (Cth) by failing to ensure that materials supplied in connection with those services were reasonably fit for their intended purpose, and whether the respondent had breached its duty of care to the appellant in negligence. The fitness for purpose of the toboggan run and toboggan, and the safe operation thereof by members of the public, were central to these questions.

The Court of Appeal found that the respondent had indeed breached its obligations. Applying the principles of consumer protection legislation and the common law of negligence, the court determined that the respondent, as the operator of the toboggan run, owed a duty of care to its patrons. This duty extended to ensuring that the equipment provided, including the toboggan run and the toboggan itself, was reasonably fit for the purpose of safe recreational use by the general public. The court concluded that the respondent had failed to meet this standard, leading to the appellant's injuries.

Consequently, the Court of Appeal upheld the appeal, setting aside the judgment of the District Court. A verdict and judgment were entered in favour of the appellant on the issue of liability, and the proceedings were remitted to the District Court for the assessment of the appellant's damages. The respondent was ordered to pay the appellant's costs of both the trial and the appeal.

Orders

Orders of the court

(a) Appeal upheld;

(b) judgment of Balla DCJ set aside;

(c) verdict and judgment in favour of the appellant on the issue of liability;

(d) proceedings remitted to the District Court for the determination of the appellant's damages;

(e) the respondent to pay the appellant's costs of the trial and the appeal; and

(f) the respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.