Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90
Hearing dates:
16, 17, 18 September 2014
Decision date:
09 April 2015
Before:
Barrett JA; Gleeson JA; Tobias AJA
Decision:
1. Appeal allowed. 2. Set aside orders (1) and (6) made by Beech-Jones J on 27 November 2013 and substitute the following orders: “(1)Verdict and judgment for the Defendant against the Plaintiff.” “(6)Otherwise, the Plaintiff pay the Defendant’s costs of the proceedings on the ordinary basis.” 3. The respondent pay one-half of the appellant’s costs of the appeal. 4. The respondent, if qualified, to have a certificate under the Suitors Fund Act 1951 (NSW).
Catchwords:
TORTS - negligence – accident boarding chairlift – chair approached with safety bar down – lift operator raised bar - duty of care - nature and scope of duty - relevant risk – breach of duty of care – causation - whether breach causative of damage suffered – materialisation of inherent risk – quantification of damages CONTRACTS – terms – implied terms – s 74(1) of the Trade Practices Act – duty to render services with “due care and skill” – breach of implied term – assessment of damages – quantification of damages – ss 4L, 68, 68B, 74(1) of the Trade Practices Act – contract for the provision of “recreational services” – effect exclusion clauses relating to more than personal injury or death – s 4L – “contravention” of the act CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution - inconsistency of laws (Constitution, s 109) – s 74(1) of the Trade Practices Act – Part 2 of the Civil Liability Act – direct inconsistency – quantification of damages – “full contractual liability” DAMAGES – appellate review – applicable principles – diminution in work capacity – cause of diminution – calculation of rate for domestic assistance
Legislation Cited:
Carriage of Goods by Land (Carrier’s Liability) Act 1967 (Qld) Civil Liability Act 2002 (NSW) Trade Practices Act 1974 (Cth) Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth) The Commonwealth Constitution Act 1901 (Cth)
[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.
Continue reading Perisher Blue Pty Ltd v Nair-Smith
Sign in free to access the full text
Details
AGLC
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90
Case
[2015] NSWCA 90
Decision Date
CaseChat Overview and Summary
Perisher Blue Pty Ltd appealed from a judgment of Beech-Jones J in favour of the respondent, Nair-Smith, who had suffered injury while boarding a chairlift at Perisher Valley ski resort. The primary dispute concerned whether Perisher Blue had breached its duty of care to Nair-Smith, and if so, whether that breach caused her injuries.
The court was required to determine whether Perisher Blue owed a duty of care to Nair-Smith, the nature and scope of that duty, and whether the risk of injury from boarding a chairlift with the safety bar down, and the operator raising it, was a relevant risk for the purposes of negligence. Further, the court had to consider whether any breach of duty by Perisher Blue caused Nair-Smith's damage, and whether the materialisation of an inherent risk was a factor. The court also considered contractual claims under the Trade Practices Act 1974 (Cth) and the potential inconsistency between state and federal legislation.
The Court of Appeal found that the trial judge had erred in finding a breach of duty. It held that the operator's action of raising the safety bar as the chair approached was not negligent. The court reasoned that the operator was entitled to assume that a reasonably competent skier would be able to board the chairlift safely, and that the risk of injury in this specific scenario was not one that Perisher Blue ought to have foreseen or guarded against. The court also addressed the contractual claims, finding that the exclusion clauses in the contract were effective and that there was no contravention of the Trade Practices Act.
The appeal was allowed, and the verdict and judgment in favour of Nair-Smith were set aside, with judgment entered for Perisher Blue Pty Ltd. Nair-Smith was ordered to pay Perisher Blue's costs of the proceedings, and Perisher Blue was ordered to pay one-half of Nair-Smith's costs of the appeal.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside orders (1) and (6) made by Beech-Jones J on 27 November 2013 and substitute the following orders:
“(1)Verdict and judgment for the Defendant against the Plaintiff.”
“(6)Otherwise, the Plaintiff pay the Defendant’s costs of the proceedings on the ordinary basis.”
3. The respondent pay one-half of the appellant’s costs of the appeal.
4. The respondent, if qualified, to have a certificate under the Suitors Fund Act 1951 (NSW).