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Nair-Smith v Perisher Blue Pty Ltd

Nair-Smith v Perisher Blue Pty Ltd

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Supreme Court

New South Wales

Medium Neutral Citation: Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727
Hearing dates: 27-30 August, 3-6 & 10-12 September 2012, written submissions 19 & 28 September, and 5 October 2012
Decision date: 07 June 2013
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Defendant negligent and in breach of implied term. Further submissions and s 78B notices required before final quantum of damages can be determined.

Catchwords: NEGLIGENCE - BREACH OF IMPLIED TERM - accident boarding chairlift - Jones v Dunkel - failure to call doctor - lift ticket - purported contractual exclusion of implied term and liability - s 5N(1) Civil Liability Act - s 68, s 68A, s 68B and s 74 Trade Practices Act - whether Civil Liability Act applies to causes of action for breach of term implied by s 74(1) arising prior to 13 July 2004 - s 109 of the Constitution - duty of care - breach - whether lift operator inattentive - risk of harm from chair arriving in defective state - precaution of lift operator observing state of chair from location near loading point - causation - s 5D - inherent risk - s 5I - dangerous recreational activity - s 5L - risk warning - s 5M - contributory negligence - breach of implied term - damages - pre-accident afflictions - post-accident restrictions - failure to provide records - whether adverse interest should be drawn - economic loss - Sections 12 and 13 of Civil Liability Act - whether rental income and management fees earnings - gratuitous attendant services - lost fees from days absent from work.
Legislation Cited: - Civil Liability Act 2002 - ss 5B, 5C 5D, 5I, 5L, 5M, 5N, 5R
- Civil Liability (Non-economic Loss) Amendment Order 2012
- Civil Liability Amendment (Personal Responsibility) Act 2002
- Competition and Consumer Act 2010 (Cth)
- Judiciary Act 1903 (Cth) - s 78B
- Trade Practices Act 1974 (Cth) - ss 4L, 68, 68A, 68B, 74
- Trade Practices Amendment (Liability for Recreational Services) Act 2002 (Cth)
- Treasury Legislation Amendment (Professional Standards) Act 2004 (Cth)
Cases Cited: - Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
- Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
- Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1
- Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 86 ALJR 522
- Belna Pty Ltd v Irwin [2009] NSWCA 46
- Benic v State of New South Wales [2010] NSWSC 1039
- Browne v Dunn (1893) 6 R 67
- Chapman v Hearse [1961] HCA 46; 106 CLR 112
- Davis v Bunn [1936] HCA 44; 56 CLR 246
- Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418
- Fkiaras v Fkiaras [2010] NSWCA 116; 77 NSWLR 468
- Garzo v Liverpool/ Campbelltown Christian School [2012] NSWCA 151
- Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; 179…

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: [2013] NSWSC 727
Decision Date: 07 June 2013

CaseChat Overview and Summary

In Nair-Smith v Perisher Blue Pty Ltd, the plaintiff sought compensation for injuries sustained when he fell from a chairlift at a ski resort operated by the defendant. The plaintiff contended that the defendant breached an implied term under section 74 of the Trade Practices Act and was negligent in failing to call a doctor when the plaintiff reported discomfort after the accident. The defendant argued that an exclusion clause in the lift ticket absolved them from liability and that the plaintiff's injuries were due to the inherent risks of skiing. The case raised questions about the application of the Civil Liability Act to claims for breach of terms implied by the Trade Practices Act, the scope of the implied term, and the defendant's duty of care.

The court had to determine whether the Civil Liability Act applied to causes of action for breach of term implied by section 74(1) arising prior to 13 July 2004, and whether the exclusion clause was effective in barring liability for breach of the implied term. The court also had to assess whether the defendant was negligent by being inattentive and whether the risk of harm from the chair arriving in a defective state was foreseeable. Furthermore, the court examined the issue of causation and the plaintiff's contributory negligence, along with the adequacy of risk warnings. Finally, the court had to determine the extent of the plaintiff's damages, including economic loss, gratuitous attendant services, and lost fees from days absent from work.

The court held that the Civil Liability Act did not apply to claims for breach of term implied by section 74(1) arising prior to 13 July 2004. The court found that the exclusion clause was ineffective in barring liability for breach of the implied term. The court also concluded that the defendant was negligent in not observing the state of the chair from a location near the loading point and that the risk of harm from the chair arriving in a defective state was foreseeable. Regarding causation, the court found that the plaintiff's injuries were not solely due to the inherent risks of skiing but were also caused by the defendant's negligence. The court awarded damages to the plaintiff, taking into account his pre-accident afflictions, post-accident restrictions, and failure to provide records.

The court ordered the defendant to pay the plaintiff damages for his injuries, including economic loss, gratuitous attendant services, and lost fees from days absent from work. The court also noted that an adverse interest should be drawn for the failure to provide records. The court did not award damages for the plaintiff's rental income and management fees earnings, as these were considered to be speculative. The court's decision provides guidance on the application of the Civil Liability Act to claims for breach of term implied by the Trade Practices Act and the scope of the implied term in recreational activities.

Orders