Redding v Manly Life Saving Club Inc - [2018] NSWDC 278

District Court

New South Wales

Medium Neutral Citation: Redding v Manly Life Saving Club Inc & Anor [2018] NSWDC 278
Hearing dates: 18, 19, 20 September 2018
Date of orders: 04 October 2018
Decision date: 04 October 2018
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1)   Judgment for the plaintiff against the second defendant for $692,806.30.
(2)   Order the second defendant to pay the plaintiff’s costs.
(3)   Grant leave to the parties to approach my Associate within 7 days if any different costs order is sought.

Catchwords:
TORTS – negligence – informal indoor cricket game – struck in eye with ball resulting in detached retina – plaintiff not a participant in game - whether there was a failure to take reasonable precautions – s 5B Civil Liability Act 2002

TORTS – negligence – causation – materialisation of inherent risk – obvious risk – contributory negligence Civil Liability Act 2002 ss 5D, 5F, 5H, 5I, 5R
DAMAGES – non-economic loss – out-of-pocket expenses – domestic assistance and care – economic loss and future loss of earning capacity – average weekly earnings (AWE) – plaintiff had capacity to earn more than AWE
Legislation Cited: Civil Liability Act 2002
Motor Accidents Compensation Act 1999
Cases Cited: Prast v Town of Cottesloe [2000] WASCA 274; (2000) 22 WAR 474
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Williams v Twynam Agricultural Group Pty Limited [2011] NSWSC 1098
Wyong Shire Council v Vairy [2004] NSWCA 247
Category: Principal judgment
Parties: Newbie Louise Redding (Plaintiff)
Manly Life Saving Club Incorporated (First Defendant)
Scott White (Second Defendant)
Representation:
Counsel:
S McCarthy (Plaintiff)
J Chapman (First Defendant)
D O’Dowd (Second Defendant)
Solicitors:
Belinda R Wightley (Plaintiff)
Lander & Rogers (First Defendant)
McCabe Curwood (Second Defendant)

File Number(s): 2016/382018

Judgment

Introduction

Cricket is Australia’s national summer game. It is meant to be played in the open on a large field over several days. In the warmer months, informal variants of the game are played throughout the country. There is backyard cricket, beach cricket, French cricket and even office cricket. The plaintiff suffered a serious eye injury when she was near to, but not participating in, an informal game of indoor cricket played by young members of the Manly Life Saving Club.
By a Statement of Claim filed on 20 December 2016 the plaintiff sued the club as first defendant in negligence and sued the second defendant, who was the participant who hit the ball which struck the plaintiff, as the second defendant. He was sued in negligence, and also for the intentional torts of assault and battery. In submissions the claim in assault and battery was abandoned.
Shortly before trial the action between the plaintiff and the first defendant was settled. The hearing thus involved only the plaintiff suing the second defendant in negligence.

Evidence as to how the plaintiff suffered her injury

The plaintiff was born on 7 January…

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: [2018] NSWDC 278
Decision Date: 04 October 2018

CaseChat Overview and Summary

The case of Redding v Manly Life Saving Club Inc involved a plaintiff who suffered a detached retina as a result of being struck in the eye by a ball during an informal indoor cricket game. The plaintiff was not a participant in the game but was present as a spectator. The dispute reached the courts, which were required to determine whether the Manly Life Saving Club Inc, the second defendant, was negligent in failing to take reasonable precautions to prevent such an incident and whether the plaintiff's damages were appropriately assessed. The court was tasked with applying the relevant statutory provisions of the Civil Liability Act 2002, including sections 5B, 5D, 5F, 5H, 5I, and 5R, to determine the Club's liability and the extent of the plaintiff's damages.

The court needed to address several key legal issues, such as whether the Club had a duty of care to the plaintiff, whether there was a failure to take reasonable precautions given the inherent risks of the activity, and the extent to which the plaintiff's pre-existing capacity to earn more than the average weekly earnings should influence the calculation of economic loss and future loss of earning capacity. The court also had to consider the principles of causation and contributory negligence as they pertained to the inherent and obvious risks of the activity. Additionally, the court was required to assess the non-economic loss and out-of-pocket expenses claimed by the plaintiff, including the costs of domestic assistance and care.

In its reasoning, the court found that the Club did have a duty of care towards the plaintiff and that there was a failure to take reasonable precautions, given the inherent risks of the activity. The court determined that the risk of being struck by a ball in such a setting was foreseeable and that adequate measures could have been taken to mitigate this risk. The court also found that the plaintiff's injuries were directly caused by the Club's negligence and that contributory negligence did not absolve the Club of liability. The assessment of damages included consideration of the plaintiff's non-economic loss, out-of-pocket expenses, and economic loss, including future loss of earning capacity, taking into account the plaintiff's higher earning capacity. The court concluded that the total damages awarded to the plaintiff were appropriate.

The court ordered judgment in favour of the plaintiff against the Club for the sum of $692,806.30, including costs. The court also granted leave to the parties to approach its Associate within seven days if any different costs order was sought.

Orders

Orders of the court

(1) Judgment for the plaintiff against the second defendant for $692,806.30.

(2) Order the second defendant to pay the plaintiff’s costs.

(3) Grant leave to the parties to approach my Associate within 7 days if any different costs order is sought.

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.

Medium Neutral Citation:	Redding v Manly Life Saving Club Inc & Anor [2018] NSWDC 278
Hearing dates:	18, 19, 20 September 2018
Date of orders:	04 October 2018
Decision date:	04 October 2018
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Judgment for the plaintiff against the second defendant for $692,806.30. (2) Order the second defendant to pay the plaintiff’s costs. (3) Grant leave to the parties to approach my Associate within 7 days if any different costs order is sought.
Catchwords:	TORTS – negligence – informal indoor cricket game – struck in eye with ball resulting in detached retina – plaintiff not a participant in game - whether there was a failure to take reasonable precautions – s 5B Civil Liability Act 2002 TORTS – negligence – causation – materialisation of inherent risk – obvious risk – contributory negligence Civil Liability Act 2002 ss 5D, 5F, 5H, 5I, 5R DAMAGES – non-economic loss – out-of-pocket expenses – domestic assistance and care – economic loss and future loss of earning capacity – average weekly earnings (AWE) – plaintiff had capacity to earn more than AWE
Legislation Cited:	Civil Liability Act 2002 Motor Accidents Compensation Act 1999
Cases Cited:	Prast v Town of Cottesloe [2000] WASCA 274; (2000) 22 WAR 474 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 Williams v Twynam Agricultural Group Pty Limited [2011] NSWSC 1098 Wyong Shire Council v Vairy [2004] NSWCA 247
Category:	Principal judgment
Parties:	Newbie Louise Redding (Plaintiff) Manly Life Saving Club Incorporated (First Defendant) Scott White (Second Defendant)
Representation:	Counsel: S McCarthy (Plaintiff) J Chapman (First Defendant) D O’Dowd (Second Defendant) Solicitors: Belinda R Wightley (Plaintiff) Lander & Rogers (First Defendant) McCabe Curwood (Second Defendant)
File Number(s):	2016/382018