Laoulach v Ibrahim

Case [2011] NSWCA 402

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Laoulach v Ibrahim [2011] NSWCA 402
Hearing dates:29 November 2011
Decision date: 16 December 2011
Before: Giles JA at 1; Macfarlan JA at 2; Tobias AJA at 3
Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - negligence - personal injury - diving accident - existence of duty of care - breach of duty of care - dangerous recreational activity - obvious risk - limitation of liability for maritime claims
Legislation Cited: Civil Liability Act 2002 ss 5B, 5F, 5H, 5K, 5L
Limitation of Liability for Maritime Claims Act 1989 (Cth)
Marine Safety Act s 4
Cases Cited: Berrigan Shire Council v Ballerini [2005] VSCA 159; (2005) 13 VR 111
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649
Council of the City of Greater Taree City Council v Wells [2010] NSWCA 147; (2010) 174 LGERA 208
Dovuro Pty Limited v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113; (2010) 267 ALR 752
Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418
Falvo v Australian Oztag Sports Association [2006] NSWCA 17; (2006) Aust Tort Reports 81-831
Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Rep 81-952
Laoulach v El Khoury [2010] NSWSC 1009
Lormine Pty Ltd v Xuereb [2006] NSWCA 200
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Parissis v Bourke [2004] NSWCA 373
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Shaw v Thomas [2010] NSWCA 169; (2010) Aust Torts Reports 82-065
Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517
Taouk v Waste Recycling & Processing Service of NSW [2003] NSWCA 273
Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; (2005) 221 CLR 234
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wilson v Nilepac Pty Ltd [2011] NSWCA 63
Wyong Shire Council v Vairy [2004] NSWCA 247
Category:Principal judgment
Parties: Appellant: Robert LAOULACH
First Respondent: Danny IBRAHIM
Second Respondent: Mickey BEAINI
Representation: Appellant: B D Dooley SC/ G J Hickey
Respondents: R Cavanagh SC/ C Purdy
Appellant: Slater & Gordon
Respondents: Sparke Helmore
File Number(s):2007/265236
 Decision under appeal 
Citation:
Laoulach v El Khoury [2010] NSWSC 1009
Date of Decision:
2010-09-16 00:00:00
Before:
Price J
File Number(s):
2007/265236

Judgment

  1. GILES JA: I agree with Tobias AJA.

  1. MACFARLAN JA : I agree with Tobias AJA

  1. TOBIAS AJA : On 30 November…

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AGLC
Laoulach v Ibrahim [2011] NSWCA 402
Case
[2011] NSWCA 402
Decision Date

CaseChat Overview and Summary

In *Laoulach v Ibrahim*, the New South Wales Court of Appeal considered an appeal arising from a diving accident. The appellant, Mr. Laoulach, suffered serious injuries when he dived from a jetty into shallow water and struck his head. He brought proceedings against the respondent, Mr. Ibrahim, who was the owner of the property on which the jetty was situated. The primary dispute concerned whether Mr. Ibrahim owed a duty of care to Mr. Laoulach and, if so, whether that duty had been breached.

The central legal issues before the Court of Appeal were whether the trial judge erred in finding that Mr. Ibrahim owed a duty of care to the appellant, and whether the appellant's injuries were caused by a breach of that duty. Further, the Court was required to consider whether the appellant's actions constituted a dangerous recreational activity and whether the risk of injury was an obvious risk, which might limit or negate liability. The applicability of the *Civil Liability Act 2002* (NSW) and potentially maritime law limitations were also implicitly in question given the nature of the incident.

The Court of Appeal upheld the trial judge's findings. It reasoned that while the appellant was engaged in a recreational activity, the circumstances did not necessarily fall within the protections afforded by the *Civil Liability Act 2002* (NSW) regarding dangerous recreational activities or obvious risks. The Court found that Mr. Ibrahim, as the owner of the property, did owe a duty of care to persons who might use the jetty, particularly given the potential for the water depth to be variable and not immediately apparent. The evidence supported a finding that this duty had been breached by failing to adequately warn of the dangers associated with diving from the jetty, or by failing to take reasonable steps to mitigate those risks.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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