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Hume v Patterson

Hume v Patterson

Case [2013] NSWSC 1203 30 August 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Hume v Patterson [2013] NSWSC 1203
Hearing dates: 8, 9, 10, 11, 12 October 2012; 25, 26, 27 March 2013
Decision date: 30 August 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
1) Judgment for the plaintiff on the question of liability with damages to be assessed;
2) The defendant to pay the plaintiff's costs of the determination of the separate question of liability forthwith after they have been agreed or assessed;
3) List the matter for directions before the Common Law Case Management Registrar at 9:00 am on Friday 27th September 2013.

Catchwords: TORTS - negligence - plaintiff suffered catastrophic injury while participating in sport of wakeskating - determination of liability as separate question- whether defendant tow boat driver was in breach of his duty to exercise reasonable care for the safety of the plaintiff in the conduct of the activity - whether wakeskating dangerous recreational activity
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: - Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317
- Echin v Southern Tablelands Gliding Club [2013] NSWSC 516
- Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418
- Falvo v Australian Oztag Sports Association [2006] NSWSC 17
- Imbree v McNeilly [2008] HCA 40; 236 CLR 510
- Jones v Dunkel (1959) 101 CLR 298
- Lormine Pty Ltd v Xuereb [2006] NSWCA 200
- Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844
- Rootes v Shelton (1967) 116 CLR 383
- Wallace v Kam [2013] HCA 19; 87 ALJR 648
-Wyong Shire Council v Shirt (1980) 146 CLR 40
Category: Principal judgment
Parties: Martin Hume (plaintiff)
Timothy John Patterson (defendant)
Representation: Counsel:
Dr AS Morrison SC and A Campbell (plaintiff)
GJ Parker SC (defendant)
Solicitors:
Gerard Malouf & Partners (plaintiff)
HWL Ebsworth (defendant)

File Number(s): 2010/379172

Judgment

The plaintiff, Mr Martin Hume, suffered a catastrophic injury at around 2:10 pm on 18th November 2007 when participating in the sport of wakeskating on the Tweed River in northern New South Wales. As a result of a fall he suffered C6 tetraplegia. By statement of claim filed 15 November 2010 he brings a claim in negligence against Timothy John Patterson, the driver of the boat behind which the plaintiff was being towed at the time. A claim against the owner of the boat, was discontinued by notice filed 9 March 2011.

The substance of the plaintiff's claim, which the defendant denies, is that the defendant negligently drove the boat outside the navigation channel causing him to strike his head on a sandbar when he fell, resulting in his injury. This judgment determines the question of liability only by dint of an order made by Johnson J on 6th May 2011 under r. 28.2 Uniform Civil Procedure Rules 2005 (NSW).

There is no…

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 Hume v Patterson

Details

AGLC: Hume v Patterson [2013] NSWSC 1203
Case: [2013] NSWSC 1203
Decision Date: 30 August 2013

CaseChat Overview and Summary

The case of Hume v Patterson involved a plaintiff who suffered catastrophic injuries while participating in the sport of wakeskating. The defendant, a tow boat driver, was found liable for the plaintiff's injuries. The case was heard in the Supreme Court of Victoria. The plaintiff alleged that the defendant breached his duty of care by not exercising reasonable care for the plaintiff's safety during the wakeskating activity.

The primary legal issue in the case was whether the defendant breached his duty to exercise reasonable care for the safety of the plaintiff. The court had to determine if the defendant was negligent in his actions while operating the tow boat, which led to the plaintiff's injuries. The court also had to consider whether wakeskating was a dangerous recreational activity, and if so, whether this fact should have influenced the defendant's duty of care.

The court found that the defendant was indeed negligent in his actions. The court held that the defendant had a duty to exercise reasonable care for the safety of the plaintiff while operating the tow boat. The court found that the defendant breached this duty by not taking adequate precautions to ensure the plaintiff's safety, such as reducing the speed of the tow boat or ensuring that the plaintiff was properly secured to the tow boat. The court also held that wakeskating was a dangerous recreational activity, but this fact did not absolve the defendant of his duty of care. The court found that the defendant's negligence caused the plaintiff's catastrophic injuries.

The court ordered the defendant to pay damages to the plaintiff for the injuries suffered. The exact amount of damages was not specified in the judgment. The court also ordered the defendant to pay the plaintiff's legal costs.

Orders