Lormine Pty Ltd v Xuereb - [2006] NSWCA 200

NEW SOUTH WALES COURT OF APPEAL

CITATION: LORMINE PTY LTD & ANOR v XUEREB [2006] NSWCA 200

FILE NUMBER(S):
40235/05

HEARING DATE(S): 16 February 2006

DECISION DATE: 25/07/2006

PARTIES:
LORMINE PTY LTD
RONALD JAMES HUNTER
JULIET DAWN XUEREB

JUDGMENT OF: Mason P McColl JA Hunt AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 5179/03

LOWER COURT JUDICIAL OFFICER: Ashford DCJ

COUNSEL:
Appellants: S G Campbell SC/ C K Hickey
Respondent: P R Arden SC/ T Boyd

SOLICITORS:
Appellants: Barraclough Jones & Associates
Respondent: Herbert Weller

CATCHWORDS:
NEGLIGENCE – Under statute – Civil liability legislation – Plaintiff’s participation in dolphin watch cruise – Whether a “dangerous recreational activity” – Whether travelling on foredeck posed “obvious” risk – Whether risk of rogue wave “inherent” – Civil Liability Act 2002, ss 5F, 5I, 5K and 5L.
NEGLIGENCE – Personal injury – Damages – Economic loss – Assessment – Plaintiff to show diminution in earning capacity productive of financial loss – Civil Liability Act 2002, s 13.
CONTRACTS – Exclusion clause – Incorporation by signature – Whether intended to affect legal relations – Whether for purposes of head count only – Sufficiency of notice – Construction – Contra proferentem.

LEGISLATION CITED:
Civil Liability Act 2002

DECISION:
Appeal allowed in part. Respondent's (plaintiff's) verdict reduced from $171,548 to $64,720.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40235/05
MASON P
McCOLL JA
HUNT AJA
Tuesday 25 July 2006

LORMINE PTY LTD & Anor v Juliet Dawn XUEREB

The Civil Liability Act 2002 provides:

5I No liability for materialisation of inherent risk

A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.
This section does not operate to exclude liability in connection with a duty to warn of a risk.

5L No liability for harm suffered from obvious risks of dangerous recreational activities

A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
This section applies whether or not the plaintiff was aware of the risk.

5F Meaning of “obvious risk”

For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
Obvious risks include risks that are patent or a matter of common knowledge.
A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

5K Definitions

In this Division:

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.

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Details

Case: [2006] NSWCA 200
Decision Date: 25 July 2006

CaseChat Overview and Summary

Lormine Pty Ltd appealed to the Supreme Court of New South Wales against a judgment awarded to Mr. Xuereb, who had suffered injuries while participating in a dolphin-watching cruise operated by the appellant. The dispute concerned whether the appellant was liable for Mr. Xuereb's injuries, which occurred when a wave washed over the foredeck of the vessel.

The central legal issues before the Court were whether Mr. Xuereb's participation in the cruise constituted a "dangerous recreational activity" under the *Civil Liability Act 2002* (NSW), whether the risk of being struck by a rogue wave was an "obvious risk" for the purposes of that Act, and whether the appellant had effectively incorporated an exclusion clause into its contract with Mr. Xuereb. The Court also considered the assessment of economic loss, specifically whether Mr. Xuereb had demonstrated a diminution in earning capacity that was productive of financial loss.

The Court found that while the activity of travelling on the foredeck of a vessel at sea did not inherently pose an obvious risk, the risk of a rogue wave was an inherent risk. However, the Court determined that the exclusion clause, which Mr. Xuereb had signed, was sufficiently incorporated and clearly worded to exclude liability for negligence in these circumstances. Consequently, the Court allowed the appeal in part, reducing the damages awarded to Mr. Xuereb.

Orders

Orders of the court

Appeal allowed in part. Respondent's (plaintiff's) verdict reduced from $171,548 to $64,720. Respondent (plaintiff) to pay one half of the appellant's costs of the appeal. IN THE SUPREME COURT OF NEW SOUTH WALES

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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