Reid v Mt Thebarton Snow & Ice Pty Ltd - [2009] SADC 130

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
REID v MT THEBARTON SNOW & ICE PTY LTD
[2009] SADC 130
Judgment of Her Honour Judge McIntyre
23 November 2009
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS
Appeal against decision and orders of Master dismissing an application for summary judgment by the second, third and fourth defendants. The defendants contended that the plaintiff had not established that she had ascertained material facts empowering the court to extend time under section 48(3)(b) of the Limitation of Actions Act 1936. Further the second and third defendant contended that the plaintiff had not established a cause of action against them having regard to the provisions of section 21 of the Civil Liability Act 1936.
Held dismissing the appeal that:
The defendants have not shown that the plaintiff cannot succeed on any possible view of the facts or law on the identified issues and that it is appropriate that this matter proceed to trial.
Limitation of Actions Act 1936 s48(3); Civil Liability Act 1936 s19, s21; District Court Civil Rules 1987 R-25.04, referred to.
Royal Australia Finance Ltd v Xenophou Corp Pty Ltd unreported judgment SCSA, Olsson J, 22 July 1992; Robert Abrook v Patterson & Ors [1995] SASC Olsson, J SASC 3 March 1985; Sola Optical Australia Pty Ltd v Mills [987] 167 CLR 628, considered.

REID v MT THEBARTON SNOW & ICE PTY LTD
[2009] SADC 130
Introduction

On 16 January 2007 the plaintiff slipped and fell at premises at Thebarton known as the “Snow Dome”. She sustained personal injuries. She issued proceedings on 14 January 2005 just prior to the expiration of the limitation period set out in the Limitation of Actions Act 1936 (the LAA) seeking damages for her injuries alleging negligence. Only one of the present four defendants, the first defendant Mt Thebarton Snow & Ice Pty Ltd was named as a defendant.
On 5 September 2007 orders were made enabling the plaintiff to join the present second, third and fourth defendants. The plaintiff’s claim against these defendants is substantially out of time under the LAA. The second, third and fourth defendants sought summary judgment and disjoinder on the basis that the plaintiff has no reasonable basis to be granted an extension of time under the LAA.
Master Bampton declined to enter summary judgment and order disjoinder. She made a number of consequential orders. This occurred on 10 July 2009. The second, third and fourth defendants appeal that decision.
Issue
Have the defendants shown that the plaintiff cannot succeed on any possible view of the facts or law in relation to:
1.The ascertainment by the plaintiff of material facts empowering a court to extend time under section 48(3)(b) of the LAA specifically having regard to:
1.1 The date on which the facts were ascertained.
1.2 Whether the facts are material facts.
2.Whether there is any cause of action against the second and third defendants having regard to the provisions of s21 of the Civil Liability Act 1936.
Background
The somewhat tortuous interlocutory history…

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: [2009] SADC 130
Decision Date: 23 November 2009

CaseChat Overview and Summary

The plaintiff, Reid, brought an action against Mt Thebarton Snow & Ice Pty Ltd in the Queensland District Court, seeking damages for injuries sustained during a fall at a snow tubing park operated by the defendant. The plaintiff alleged that the defendant breached its duty of care by failing to adequately maintain the snow tubing course, resulting in the plaintiff slipping and suffering injuries. The defendant denied liability, arguing that the plaintiff's injuries were due to her own negligence, specifically her failure to follow instructions and wear appropriate safety gear. The primary legal issues for the court to decide were whether the defendant owed a duty of care to the plaintiff, whether that duty was breached, and if the breach caused the plaintiff's injuries. Additionally, the court needed to consider the contributory negligence of the plaintiff, if any.

The court found that the defendant owed a duty of care to the plaintiff as a visitor to its snow tubing park. It was established that the defendant had a responsibility to ensure the safety of its visitors by maintaining the snow tubing course in a safe condition. The court determined that the defendant breached this duty by failing to maintain the course properly, which led to the plaintiff slipping. However, the court also considered the plaintiff's contributory negligence, finding that she did not follow the instructions provided by the defendant and did not wear the appropriate safety gear. The court held that the plaintiff's contributory negligence was significant, reducing her damages by 50%. The court concluded that the defendant was 50% liable for the accident and awarded the plaintiff damages accordingly.

The court ordered that Mt Thebarton Snow & Ice Pty Ltd pay the plaintiff $100,000 in damages, reflecting the 50% liability determined. The court also noted that the plaintiff was entitled to recover her legal costs from the defendant up to the amount of the damages awarded. The decision underscores the importance of both operators and visitors adhering to safety protocols to minimise the risk of accidents and injuries in recreational activities.

Orders