Lormine Pty Ltd v Xuereb

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.