Motorcycling Events Group Australia Pty Ltd v Kelly

Motorcycling Events Group Australia Pty Ltd appealed to the Court of Appeal of New South Wales against a judgment in favour of Mr Kelly. The dispute concerned a contract for services where Mr Kelly suffered injuries while participating in a recreational activity organised by the appellant. The appellant argued that it had provided a risk warning and that certain exclusion clauses in the contract were valid.

The central legal issues before the Court of Appeal were whether section 74(2A) of the *Trade Practices Act 1974* (Cth) operated to incorporate and apply provisions of the *Civil Liability Act 2002* (NSW), specifically sections 5B and 5M, to the appellant's liability. The court also considered whether the exclusion clauses were rendered void by section 68B of the *Trade Practices Act 1974* and whether the primary judge's assessment of contributory negligence and damages for non-economic loss was unreasonable or manifestly excessive.

The Court of Appeal held that section 74(2A) of the *Trade Practices Act 1974* did not have the effect of picking up and applying sections 5B and 5M of the *Civil Liability Act 2002*. Instead, the court found that section 74(1) of the *Trade Practices Act 1974* was the operative provision, requiring services to be rendered with due care and skill. The court further determined that the exclusion clauses were void under section 68B of the *Trade Practices Act 1974* because the services provided were recreational services. Regarding the assessment of damages, the court found no error in the primary judge's findings on contributory negligence or the quantum of non-economic loss.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.