Price v State of New South Wales

The appellant, an inmate at a correctional centre, sustained an eye injury when struck by a tennis ball during a match. The appellant was seated behind the baseline in an area where serves and returns were being made. The primary judge had found the risk of injury was not remote but erred in the evaluative task required by section 5B of the *Civil Liability Act 2002* (NSW) and the principles established in *Wyong Shire Council v Shirt*. The appeal concerned the duty of care owed by the State in circumstances of detention and assumption of control, and the appellant's alleged contributory negligence.

The Court of Appeal was required to determine whether the State had breached its duty of care to the appellant by failing to take reasonable precautions against the foreseeable risk of injury from being struck by a tennis ball. It also had to consider whether the appellant was contributorily negligent by choosing to sit in that location and failing to maintain a proper lookout.

The Court found that the risk of injury was not insignificant and that the primary judge had erred in their assessment of the risk and the reasonableness of the precautions. The State owed a duty of care to the appellant, and the circumstances of the injury demonstrated a breach of that duty. The Court also found that while the appellant was contributorily negligent, this did not negate the State's liability.

The appeal was allowed, and the orders of the District Court were set aside. Judgment was entered for the plaintiff (appellant) in the sum of $176,683.50, with the defendant (respondent) to pay the plaintiff's costs. Leave was granted to file a notice of motion within 14 days to vary the orders to reflect a contingent assessment of 70 per cent of the total loss.