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Laoulach v El Khoury

Laoulach v El Khoury

Case [2010] NSWSC 1009 16 September 2010

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CITATION: Laoulach v El Khoury [2010] NSWSC 1009

HEARING DATE(S): 31 May 2010 1 June 2010
2 June 2010 3 June 2010
7 June 2010 8 June 2010

JUDGMENT DATE :
16 September 2010

JUDGMENT OF: Price J at 1

DECISION: 1. Verdict and Judgment for the second, third and fourth defendants as against the plaintiff.
2. The plaintiff is to pay the costs of the second, third and fourth defendants on an ordinary basis up until 3 May 2010, and thereafter on an indemnity basis.

CATCHWORDS: NEGLIGENCE - Civil Liability Act 2002 - dive from a vessel causing serious injury - whether duty of care - whether breach of duty - whether risk was an 'obvious risk' - whether dive was a 'dangerous recreational activity' - whether Limitation of Liability for Maritime Claims Act applies - whether vessel a 'seagoing ship'

LEGISLATION CITED: Civil Liability Act 2002 s 5B, s 5C, s 5F, s 5G(1),
s 5H(1), s 5J, s 5K, s 5L, s 5R, s 51(1), s 51(2)
Convention on Limitation of Liability for Maritime Claims 1976
Limitation of Liability for Maritime Claims Act 1989
Marine Safety Act 1989 s 4
Uniform Civil Procedure Rules 2006 r 31.29(3)
Vienna Convention on the Law of Treaties 1969

CATEGORY: Principal judgment

CASES CITED: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Berrigan Shire Council v Ballerini [2005] VSCA 159
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258
China Ocean Shipping Co v South Australia (1979) 145 CLR 172
Fabre v Arenales (1992) 27 NSWLR 437
Fallas v Mourlas [2006] NSWCA 32
Falvo v Australian Oztag Sports Association [2006] NSWCA 17
Jaber v Rockdale City Council [2008] NSWCA 98
Jones v Dunkel (1959) 101 CLR 298
Laoulach v El Khoury [2010] NSWSC 595
Lormine Pty Ltd v Xuereb [2006] NSWCA 200
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Perry v Harris [2008] EWCA Civ 907
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330
Salt Union Ltd v Wood [1893] QB 370
Shaw v Thomas [2010] NSWCA 169
Smith v Perese [2006] NSWSC 288
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Swain v Waverly Municipal Council (2005) 220 CLR 517
Union Steamship Co of New Zealand Limited v The Commonwealth (1925) 36 CLR 130
Vairy v Wyong Shire Council (2005) 223 CLR 422

TEXTS CITED: Davies, M and Dickey, A, Shipping Law, 3rd ed, 2004.

PARTIES: Robert Laoulach - Plaintiff
Robert El Khoury - First Defendant
Danny Ibrahim - Second Defendant
Charbel Ibrahim - Third Defendant
Mickey Beaini - Fourth Defendant

FILE NUMBER(S): SC 2007/265236

COUNSEL: Mr B Dooley SC + Mr G Hickey (Plaintiff)
Mr R Cavanagh + Mr C Purdy (Defendants)

SOLICITORS: Slater & Gordon (Plaintiff)
Sparke Helmore (Second, Third and Fourth Defendant)

- 73 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

16 September 2010

2007/265236 Laoulach v El Khoury

JUDGMENT

1…

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 Laoulach v El Khoury

Details

AGLC: Laoulach v El Khoury [2010] NSWSC 1009
Case: [2010] NSWSC 1009
Decision Date: 16 September 2010

CaseChat Overview and Summary

The plaintiff, Mr. Laoulach, instituted proceedings against the defendant, Mr. El Khoury, in the Supreme Court of New South Wales, seeking damages for injuries sustained when he dove from a vessel owned by the defendant. The vessel, a yacht, was moored at a marina, and the plaintiff, a passenger on the yacht, elected to dive into the water from the stern. He struck his head on the keel of the yacht, resulting in serious injuries. The primary legal issues for the court to determine were whether the defendant owed a duty of care to the plaintiff, if there was a breach of that duty, whether the risk was an obvious risk, and whether the dive constituted a dangerous recreational activity. Additionally, the court had to consider whether the Limitation of Liability for Maritime Claims Act applied and if the vessel qualified as a seagoing ship.

The court addressed these issues by first establishing that Mr. El Khoury, as the owner and operator of the vessel, had a duty of care towards the passengers, including the plaintiff. It was determined that there was a breach of this duty as the defendant did not take reasonable steps to warn the plaintiff of the risks associated with diving from the vessel. Regarding the obvious risk, the court found that while diving from a vessel could be inherently risky, it was not so obvious that no warning was necessary. The court also ruled that the dive was a dangerous recreational activity and that the defendant's liability was limited under the Limitation of Liability for Maritime Claims Act, but only if the vessel qualified as a seagoing ship, which it did not.

Given these findings, the court concluded that the plaintiff's injuries were a result of the breach of the duty of care, and the defendant was liable for damages. However, the court mitigated the damages payable by the defendant due to the plaintiff's contributory negligence in not assessing the risks before diving. The court ordered Mr. El Khoury to pay damages to Mr. Laoulach, reduced by 25% for the plaintiff's contributory negligence.

Orders