Perisher Blue Pty Ltd v Vidakovic - [2006] NSWCA 234

Reported Decision: (2006) Aust Torts Reports 81-858

Court of Appeal

CITATION: Perisher Blue Pty Ltd v Vidakovic [2006] NSWCA 234
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21/08/06

JUDGMENT DATE:
21 September 2006

JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; Tobias JA at 72

DECISION: (1) Appeal is upheld (2) The judgment and verdict of the trial judge is set aside (3) The respondent to pay the appellant's costs of the appeal (4) The matter is remitted to the District Court for retrial (5) The respondent to have a certificate under the Suitor's Fund Act 1951 (NSW) if otherwise qualified.

CATCHWORDS: NEGLIGENCE - respondent injured while riding on a T-bar ski lift - whether operator of ski resort negligent - rope connecting T-bar to spring-box snapped - whether an adequate system of inspecting for rope frays existed. - PRACTICE AND PROCEDURE - absence of findings of crucial primary facts by trial judge - errors in fact-finding - failure to give adequate reasons. ND

CASES CITED: Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816

PARTIES: Perisher Blue Pty Ltd (Appellant)
Ilija Vidakovic (Respondent)

FILE NUMBER(S): CA 40878/05

COUNSEL: P H Greenwood SC/P Biggins (Appellant)
D Baran (Respondent)

SOLICITORS: Dibbs Abbott Stillman (Appellant)
Petrovich Accident Lawyers (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3116/04

LOWER COURT JUDICIAL OFFICER: Ashford DCJ

LOWER COURT DATE OF DECISION: 12/10/05

CA 40878/05
DC 3116/04

BEAZLEY JA
IPP JA
TOBIAS JA
Thursday 21 September 2006

PERISHER BLUE PTY LTD v ILIJA VIDAKOVIC

Judgment

1 BEAZLEY JA: I agree with Ipp JA.

2 IPP JA:

The respondent’s claim in negligence

3 On 10 September 2001 the respondent was injured while using a T-bar ski lift (the Brumby T-bar) at a ski resort operated by the appellant. At the time, the respondent and a friend, Mr Bozic, were being pulled up the ski slope by a T-bar. The overhead towing cable stopped momentarily, then started again with a jerk. The T-bar suddenly came away from the linking system. The respondent, still holding the T-bar, fell on his back in the snow and injured his cervical spine.

4 The respondent sued the appellant in negligence and claimed damages for the injuries he had sustained. The trial judge, Ashford DCJ, upheld the claim and ordered judgment and a verdict in the respondent’s favour in the sum of $227,503.90. The appellant appeals against this judgment.

The Brumby T-bar

5 The Brumby T-bar is a continuously circulating monocable ropeway. It is 488 metres in length and has a vertical drop of 100 metres. It is not entirely clear how many T-bar carriers there were on the line. Mr Turel, the assistant manager at the ski resort, said that there were 35. Mr Gow, an expert witness called by the respondent, said that there were 38. The judge made no finding in this respect.

6 The carriers were spaced at intervals of…

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 234
Decision Date: 21 September 2006

CaseChat Overview and Summary

Perisher Blue Pty Ltd appealed to the Court of Appeal of New South Wales against a judgment entered in favour of the respondent, Vidakovic, in a negligence claim. The respondent sustained injuries while riding on a T-bar ski lift operated by the appellant when the rope connecting the T-bar to a spring-box snapped. The core of the dispute concerned whether the appellant had been negligent in its operation of the ski resort, specifically in relation to the adequacy of its system for inspecting the ski lift rope for frays.

The Court of Appeal was required to determine whether the trial judge had erred in finding the appellant negligent. This involved examining whether the appellant had breached its duty of care to the respondent. Crucially, the court also considered whether the trial judge had made errors in fact-finding and failed to provide adequate reasons for those findings, particularly concerning the existence and effectiveness of an inspection system for the rope.

The Court of Appeal found that the trial judge had failed to make findings on crucial primary facts necessary to establish negligence, and that there were errors in the fact-finding process. The judges highlighted the inadequacy of the reasons provided by the trial judge, which made it difficult to understand the basis of the decision. Consequently, the Court of Appeal upheld the appeal, set aside the judgment and verdict of the trial judge, and ordered that the matter be remitted to the District Court for a retrial. The respondent was ordered to pay the appellant's costs of the appeal, with a certificate under the Suitor's Fund Act 1951 (NSW) to be provided if the respondent otherwise qualified.

Orders

Orders of the court

(1) Appeal is upheld (2) The judgment and verdict of the trial judge is set aside (3) The respondent to pay the appellant's costs of the appeal (4) The matter is remitted to the District Court for retrial (4) The respondent to have a certificate unde the Suitor's Fund Act 1951 (NSW) if otherwise qualified.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Perisher Blue Pty Ltd v Vidakovic [2006] NSWCA 234 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21/08/06
JUDGMENT DATE:	21 September 2006
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 2; Tobias JA at 72
DECISION:	(1) Appeal is upheld (2) The judgment and verdict of the trial judge is set aside (3) The respondent to pay the appellant's costs of the appeal (4) The matter is remitted to the District Court for retrial (5) The respondent to have a certificate under the Suitor's Fund Act 1951 (NSW) if otherwise qualified.
CATCHWORDS:	NEGLIGENCE - respondent injured while riding on a T-bar ski lift - whether operator of ski resort negligent - rope connecting T-bar to spring-box snapped - whether an adequate system of inspecting for rope frays existed. - PRACTICE AND PROCEDURE - absence of findings of crucial primary facts by trial judge - errors in fact-finding - failure to give adequate reasons. ND
CASES CITED:	Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816
PARTIES:	Perisher Blue Pty Ltd (Appellant) Ilija Vidakovic (Respondent)
FILE NUMBER(S):	CA 40878/05
COUNSEL:	P H Greenwood SC/P Biggins (Appellant) D Baran (Respondent)
SOLICITORS:	Dibbs Abbott Stillman (Appellant) Petrovich Accident Lawyers (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3116/04
LOWER COURT JUDICIAL OFFICER:	Ashford DCJ
LOWER COURT DATE OF DECISION:	12/10/05