Gharibian v Propix Pty Ltd

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.