Lets Go Adventures Pty Ltd v Barrett

In *Lets Go Adventures Pty Ltd v Barrett*, the New South Wales Court of Appeal considered an appeal from a decision of Gibson DCJ in the District Court of New South Wales. The dispute arose from a diving incident where the plaintiff, a diving instructor employed by the defendant, allegedly suffered decompression illness. The plaintiff claimed the defendant breached its duties under the Australian Consumer Law and the tort of negligence, leading to his injuries and subsequent loss. The defendant denied liability, arguing that the plaintiff’s injuries were caused by a materialisation of an obvious risk of a dangerous recreational activity and that the plaintiff had failed to mitigate his loss.

The Court of Appeal was required to determine several key legal issues. These included whether the defendant had breached its statutory obligations under section 60 of the Australian Consumer Law by failing to render services with due care and skill, specifically concerning the provision of oxygen and assistance to the plaintiff. The court also had to consider whether the defendant's alleged advice to the plaintiff to dive with a pre-existing head injury caused the plaintiff to undertake the dive. Furthermore, the court examined whether the defendant's actions constituted negligence under the Civil Liability Act 2002 (NSW), including issues of causation and the applicability of the defence of materialisation of an obvious risk of a dangerous recreational activity under section 5L of that Act. Finally, the court reviewed the assessment of damages, including the plaintiff's alleged failure to mitigate his loss and the quantum of economic loss.

The Court of Appeal allowed the appeal, setting aside the primary judge's findings and orders. The court found that the plaintiff's cross-examination had been confronting and insulting, which improperly influenced the primary judge's adverse credibility findings against the defendant's witnesses. The court also refused the respondent leave to file a notice of contention, finding its grounds to be hopeless. The court concluded that the plaintiff had not established the necessary elements of his claims under the Australian Consumer Law or negligence.

Consequently, the Court of Appeal ordered that there be judgment for the defendant at trial and that the plaintiff pay the defendant's costs of the trial. The respondent was also ordered to pay the appellant's costs of the appeal.