Glover v Fuller (No 2)

Case [2023] ACTSC 12


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Glover v Fuller (No 2)

Citation:

[2023] ACTSC 12

Hearing Date:

5 – 8 September 2022

DecisionDate:

31 January 2023

Before:

McWilliam AsJ

Decision:

(1)     Judgment is entered for the plaintiff in the sum of $92,585.

(2)     Interest is payable on part of the judgment sum, in the amount of $310.95.

(3)     The defendant is to pay the plaintiff’s costs.

(4)     If either party notifies the Court within 7 days of the making of these orders that a different costs order is sought, order 3 is stayed until further order.

Catchwords:

CIVIL LAW – Negligence – Personal injury – water sports accident involving motorboat towing a child in an inflatable tube with a pre-existing undiagnosed spinal condition – characterisation of risk – whether sufficient precautions taken to guard against risk of back injury – whether water sport of tubing a dangerous recreational activity – whether risk of injury obvious to a twelve-year-old child

LIMITATION OF ACTIONS – Personal injury – whether proceeding out of time – where plaintiff was twelve years old at time of alleged breach – where plaintiff required benefit of legal advice and specialist opinion in order to determine whether injury was sufficiently serious to justify the bringing of a cause of action – action brought within time

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D, 5F, 5K, 5L, 5R, 5S, 13, 15, 16, 18

Limitation Act 1969 (NSW) ss 50C, 50D, 50F

Marine Safety (General) Regulation 2009 (NSW) reg 33

Cases Cited:

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420

AEA Constructions Pty Ltd v Wharekawa; AEA Constructions Pty Ltd v Building Partners Pty Ltd [2019] NSWCA 176
Allianz Australia Insurance Ltd v Smeaton [2016] ACTCA 59
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 347
Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454
Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503
Kallouf v Middis [2008] NSWCA 61
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Lormine Pty Ltd v Xuereb [2006] NSWCA 200
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Mason v Demasi [2009] NSWCA 227
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 90 NSWLR 1
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Pomare v Whyte [2019] NSWCA 317
Purkess v Crittenden (1965) 114 CLR 164
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 334
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Seltsam Pty Ltd v Ghaleb 

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AGLC
Glover v Fuller (No 2) [2023] ACTSC 12
Case
[2023] ACTSC 12
Decision Date

CaseChat Overview and Summary

In the case of Glover v Fuller (No 2), the plaintiff, Glover, sought damages for injuries sustained in a water sports accident. Glover was twelve years old at the time of the accident, which occurred when he was being towed behind a motorboat in an inflatable tube. Glover suffered injuries to his spine, which was undiagnosed at the time. The defendant, Fuller, was the operator of the motorboat. The primary legal issue was whether Fuller had taken sufficient precautions to avoid Glover’s injury and whether the risk of injury was obvious to a twelve-year-old child.

The court had to decide whether the sport of tubing was inherently dangerous and whether Fuller had adequately protected Glover against the risk of injury. The court found that while tubing could be considered a dangerous recreational activity, Fuller had taken reasonable precautions, including ensuring that Glover wore a life jacket. However, the court determined that the risk of injury was not obvious to a twelve-year-old child. The court also considered whether Glover's pre-existing undiagnosed spinal condition contributed to his injuries.

The court held that Glover’s claim was not statute-barred as he was a minor at the time of the accident and required the benefit of legal advice and specialist opinion to determine the seriousness of his injury. The court found that Fuller was negligent and awarded Glover damages of $92,585, with interest of $310.95 on part of the judgment sum. Fuller was also ordered to pay Glover's costs. The judgment provides clarity on the duty of care owed by operators of motorboats towing individuals in inflatable tubes and the considerations in assessing the obviousness of risks to minors.

Orders

Orders of the court

(1) Judgment is entered for the plaintiff in the sum of $92,585.

(2) Interest is payable on part of the judgment sum, in the amount of $310.95.

(3) The defendant is to pay the plaintiff’s costs.

(4) If either party notifies the Court within 7 days of the making of these orders that a different costs order is sought, order 3 is stayed until further order.

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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