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Gors v Tomlinson

Gors v Tomlinson

Case [2020] WASCA 164 30 September 2020

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KEVEN GORS by his Plenary Administrator JANET CHRISTINE GORS -v- TOMLINSON [2020] WASCA 164
CORAM:   QUINLAN CJ
MURPHY JA
VAUGHAN JA

HEARD:   17 JUNE 2020
DELIVERED          :   30 SEPTEMBER 2020
FILE NO/S:   CACV 81 of 2019
BETWEEN:   KEVEN GORS by his Plenary Administrator JANET CHRISTINE GORS
Appellant
AND
PHILLIP KEVIN TOMLINSON
First Respondent
JENNIFER SUSAN TOMLINSON
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SCOTT DCJ
Citation: KEVEN GORS by his Plenary Administrator of JANET CHRISTINE GORS v TOMLINSON [2019] WADC 88
File Number            :   CIV 3277 of 2016

Catchwords:

Appeal - Negligence - Occupiers' liability - Duty to warn - Whether trial judge erred in finding it was unforeseeable that the risk of harm would eventuate - Whether trial judge erred in interpretation of Civil Liability Act 2002 (WA), s 5O - Whether trial judge erred in finding obvious risk - Whether trial judge erred in finding that a warning would not have prevented accident

Legislation:

Civil Liability Act 2002 (WA), s 5B, s 5F, s 5M, s 5N, s 5O
Occupiers' Liability Act 1985 (WA), s 5

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	G M G McIntyre SC & J R Brooksby
First Respondent	:	G R Hancy
Second Respondent	:	G R Hancy

Solicitors:

Appellant	:	Percy Kakulas Gleeson
First Respondent	:	Greenland Legal Pty Ltd
Second Respondent	:	Greenland Legal Pty Ltd

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

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Angel v Hawkesbury City Council [2008] NSWCA 130
Best Bar Pty Ltd v Warn [2019] WASCA 15
C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136
Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports 81-874
Child and Adolescent Health Service v Mabior [2019] WASCA 151 [
Collins v Clarence Valley Council [2015] NSWCA 263; (2015) 91 NSWLR 128
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 235
East Metropolitan Health Service v Ellis [2020] WASCA 147
Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510
Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Torts Reports 81-952
Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308; (2018) 99 NSWLR 98
Keven Gors by his Plenary Administrator of Janet Christine Gors v Tomlinson [2019] WADC 88
Nikolich v Webb [2019] WADC 58
Ragless v District Council of Prospect [1922] SASR 299
Schultz v McCormack [2015] NSWCA 330
Singh v Lynch [2020] NSWCA 152
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; (1980)…

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 Gors v Tomlinson

Details

AGLC: Gors v Tomlinson [2020] WASCA 164
Case: [2020] WASCA 164
Decision Date: 30 SEPTEMBER 2020

CaseChat Overview and Summary

The appellant, Gors, sought damages for injuries sustained in a fall at a property owned by the respondent, Tomlinson. The property was used for recreational purposes, including mountain biking. The accident occurred when Gors fell off a jump ramp while riding. Gors argued that Tomlinson was negligent in failing to warn of the risks associated with the jump ramp. The trial judge found in favour of Tomlinson, ruling that Gors's injuries were due to his own negligence and that there was no legal duty to warn of obvious risks. Gors appealed, contending that the trial judge had misapplied the principles of occupiers' liability and the provisions of the Civil Liability Act 2002 (WA).

The central issue was whether the trial judge correctly interpreted and applied the statutory framework concerning occupiers' liability and the duty to warn of risks. Specifically, the court needed to determine if the risk of harm from the jump ramp was unforeseeable and if a warning would have been effective in preventing the accident. Additionally, the court had to consider whether the risk was obvious and if a warning would have altered Gors's conduct.

The court held that the trial judge's findings were correct. It was determined that the risk of harm from the jump ramp was not unforeseeable, but the trial judge had correctly found it was an obvious risk. The court found that the risk was one that an ordinarily prudent person in Gors's position would have recognised. Furthermore, the court held that the trial judge had appropriately applied the statutory provisions, concluding that a warning would not have prevented the accident as Gors's decision to ride the jump ramp was voluntary and informed by his own experience and skill. The appeal was dismissed, and the decision of the trial judge was upheld.

The court's final orders confirmed that Gors's appeal was dismissed, and the decision of the trial judge was affirmed. Gors was not entitled to damages for the injuries sustained in the accident. The respondent, Tomlinson, was absolved of any liability for the incident.

Orders