Russell v Edwards

[2006] NSWCA 19

Reported Decision: 65 NSWLR 373
(2006) Aust Torts Reports 81-833

Court of Appeal

CITATION:	Russell v Edwards & Anor [2006] NSWCA 19 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	17/02/06
JUDGMENT DATE:	3 March 2006
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 2; Hunt AJA at 45
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	NEGLIGENCE - injury sustained by 16 year old when diving into the shallow end of a swimming pool - plaintiff intoxicated at the time of injury - liability of occupiers to adequately supervise - application of s 50 of the Civil Liability Act 2002 (NSW) - meaning of "self-induced intoxication" under s 50(5) of the Civil Liability Act - determination of a single cause of injury under s 50(1) of the Civil Liability Act. D
LEGISLATION CITED:	Civil Liability Act 2002 (NSW), Pt 6, s 50
CASES CITED:	Australian Casualty Company Ltd v Federico (1986) 160 CLR 513 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Government Insurance Office (NSW) v R J Green & Lloyd Pty Ltd (1966) 114 CLR 437 Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89 Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Ltd [2005] NSWCA 66 South Tweed Heads Football Club Ltd v Cole (2002) 55 NSWLR 113 State Government Insurance Commission v Sinfein Pty Limited (1996) 15 WAR 434 The Queen v O'Connor (1980) 146 CLR 64 Wayne Tank & Pump Company Ltd v Employers' Liability Assurance Corporation Ltd [1974] 1 QB 57
PARTIES:	Ashley James Russell (Appellant) Mark Lewis Edwards (First Respondent) Joanne Edwards (Second Respondent)
FILE NUMBER(S):	CA 41141/04
COUNSEL:	J Simpkins SC/K Andrews (Appellant) M L Williams SC/B L Jones (Respondent)
SOLICITORS:	W H Parsons & Associates (Appellant) Thompson Cooper Lawyers (Respondents)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 165/03
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ
LOWER COURT DATE OF DECISION:	17/02/2006

CA 41141/04
DC 165/03

BEAZLEY JA
IPP JA
HUNT AJA

Friday 3 March 2006

ASHLEY JAMES RUSSELL v MARK LEWIS EDWARDS & ANOR

Judgment

1 BEAZLEY JA: I agree with the reasons of Ipp JA and his proposed order.

2 IPP JA: This appeal turns on Pt 6 of the Civil Liability Act 2002 (NSW), that is, the sections of the Act that deal with intoxication.

3 When the plaintiff, Mr Ashley James Russell, was 16 years old, he attended a party at the home of the defendants, Mr and Mrs Edwards. While intoxicated, he dived into the shallow end of a swimming pool in the back garden of the house. He struck his head on the floor of the pool and was severely injured. The trial judge, Sidis DCJ, held that, although Mr and Mrs Edwards had owed Mr Russell a duty of care that they had breached by failing adequately to supervise the party, they were exculpated from liability by reason of s 50…