Hungry Jack's Pty Ltd v Fourtounas

Hungry Jack's Pty Ltd (the applicant) sought leave to appeal from a decision of the primary judge in favour of Fourtounas (the respondent). The dispute concerned alleged negligence by Hungry Jack's in relation to an incident where the respondent sustained injuries. The application for leave to appeal was heard by Basten and White JJA in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the primary judge erred in failing to make sufficient factual findings to support a defence raised by Hungry Jack's, and whether this failure raised an issue of principle or a defence that was more than merely arguable. Relatedly, the court considered the application of sections 5F and 5H of the *Civil Liability Act 2002* (NSW), specifically whether the immunity from liability for obvious risks extended beyond verbal warnings of risk and how the concept of an "obvious risk" applied in the circumstances.

The Court of Appeal found that the defence raised by Hungry Jack's was not sufficiently substantiated by evidence to warrant a finding in its favour, and that the primary judge's findings were adequate in the context of the evidence presented. The court determined that the defence was not more than merely arguable and did not raise a significant issue of principle. Furthermore, the court clarified that the immunity provisions under the *Civil Liability Act 2002* (NSW) were not limited to verbal warnings and that the question of whether a risk was "obvious" involved an objective assessment of the circumstances.

The summons seeking leave to appeal was dismissed, and Hungry Jack's was ordered to pay the respondent's costs in the Court of Appeal.