Splash Waterpark Pty Ltd v Tim Schnitzerling - [2021] NSWDC 62

District Court

New South Wales

Medium Neutral Citation: Splash Waterpark Pty Ltd v Tim Schnitzerling [2021] NSWDC 62
Hearing dates: 4, 5 and 10 March 2021
Date of orders: 15 March 2021
Decision date: 15 March 2021
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1)   Judgment for the defendant.
(2)   Order the plaintiff to pay the defendant’s costs.
(3)   Grant leave to the parties to notify my Associate by 22 March 2021 if a different costs order is sought.

Catchwords:
NEGLIGENCE — Duty of care – Foreseeability of harm – yacht dragged anchor and came into contact with inflatable waterpark when predicted strong southerly change blew up
DAMAGES – whether waterpark suffered any damage – whether damage caused by yacht - repair costs - consequential economic loss – plaintiff failed to call evidence to establish damage by way of repair costs or loss of profits – not a suitable case for court to estimate damages in the absence of evidence

Legislation Cited:
Civil Liability Act 2002 (NSW), s 5B, s 5C

Cases Cited:
Bunnings Group Limited v Giudice [2018] NSWCA 144
Hunter v Canary Wharf [1996] AC 655
Murphy v Brown (1985) 1 NSWLR 131
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 196 ALR 257
Public Trustee v Hermann (1968) WN (Pt 1) (NSW) 442
Troulis v Vamvoukakis [1998] NSWCA 237

Texts Cited:
McGregor on Damages (15th Edition), Sweet & Maxwell

Category: Principal judgment
Parties: Splash Waterpark Pty Ltd (Plaintiff)
Tim Schnitzerling (Defendant)
Representation:
Counsel:
S Grey (Plaintiff)
N Olson (Defendant)
Solicitors:
Vardanega Roberts (Plaintiff)
MCK Lawyers (Defendant)

File Number(s): 2019/204374

Judgment

Introduction

On 12 February 2017 the sloop Magnolia was anchored in Coffs Harbour. She was owned and skippered by the defendant Mr Tim Schnitzerling. To the north east of the Magnolia was an inflatable waterpark owned by the plaintiff Splash Waterpark Pty Ltd (“Splash”). A predicted strong southerly change blew up at night. The Magnolia dragged anchor and came into contact with the waterpark.
Splash pleads that Mr Schnitzerling was negligent in his management of the Magnolia and through that negligence it has suffered property damage and consequential loss.
Because of significant deficiencies in the quantum evidence put forward by Splash, it is necessary to recite some of the procedural history in the matter.

Procedural History

The original Statement of Claim was filed on 2 July 2019. An amended pleading was filed on 18 July 2019. Mr Schnitzerling filed a Defence on 11 October 2019.
On 2 December 2019 the matter was dealt with by the Judicial Registrar, who made the following orders:

Plaintiff to serve affidavit, expert liability and expert quantum/damages evidence by 21 February 2020.

Defendant to serve expert quantum/damages evidence by 3 April 2020.

Plaintiff to serve evidence in reply by 1 May 2020.

On 4 March 2020 the plaintiff filed the affidavit of Mr Anthony Kelly affirmed on 24 February 2020 (PX 1). Mr Kelly is a director of Splash. On 5 March 2020 the plaintiff…

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: [2021] NSWDC 62
Decision Date: 15 March 2021

CaseChat Overview and Summary

The case of Splash Waterpark Pty Ltd v Tim Schnitzerling involved a dispute between a waterpark operator and a yacht owner, which was heard in the Federal Circuit Court. The waterpark operator claimed damages from the yacht owner after his yacht, which had been anchored near the waterpark, came into contact with the inflatable waterpark structures when a sudden and severe southerly wind arose. The waterpark operator alleged that the yacht owner was negligent in allowing his vessel to drag anchor, resulting in damage to the waterpark. The yacht owner denied liability, asserting that no damage had occurred, or if it had, the waterpark operator had not provided sufficient evidence to support a claim for damages.

The court had to determine whether the yacht owner owed a duty of care to the waterpark operator to prevent his yacht from drifting and causing damage, and if so, whether this duty was breached. Additionally, the court needed to assess whether the waterpark operator suffered any damages due to the incident and, if so, the extent of those damages. The court had to consider whether the waterpark operator had provided adequate evidence to substantiate their claim for repair costs and any consequential economic losses.

The court found that the waterpark operator had not established a duty of care owed by the yacht owner in this context, as the harm was not reasonably foreseeable. The court also noted that the waterpark operator had failed to present evidence to substantiate their claim for damages, including repair costs or loss of profits. The court concluded that it was not appropriate to estimate damages in the absence of such evidence. Consequently, the court ruled in favour of the yacht owner, dismissing the waterpark operator’s claim.

The court ordered that the yacht owner was to be awarded judgment, with the waterpark operator to pay the yacht owner’s costs. The court further granted leave to the parties to notify its Associate by a specified date if they wished to seek a different order regarding costs.

Orders

Orders of the court

(1) Judgment for the defendant.

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

(3) Grant leave to the parties to notify my Associate by 22 March 2021 if a 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:	Splash Waterpark Pty Ltd v Tim Schnitzerling [2021] NSWDC 62
Hearing dates:	4, 5 and 10 March 2021
Date of orders:	15 March 2021
Decision date:	15 March 2021
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Judgment for the defendant. (2) Order the plaintiff to pay the defendant’s costs. (3) Grant leave to the parties to notify my Associate by 22 March 2021 if a different costs order is sought.
Catchwords:	NEGLIGENCE — Duty of care – Foreseeability of harm – yacht dragged anchor and came into contact with inflatable waterpark when predicted strong southerly change blew up DAMAGES – whether waterpark suffered any damage – whether damage caused by yacht - repair costs - consequential economic loss – plaintiff failed to call evidence to establish damage by way of repair costs or loss of profits – not a suitable case for court to estimate damages in the absence of evidence
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5B, s 5C
Cases Cited:	Bunnings Group Limited v Giudice [2018] NSWCA 144 Hunter v Canary Wharf [1996] AC 655 Murphy v Brown (1985) 1 NSWLR 131 Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 196 ALR 257 Public Trustee v Hermann (1968) WN (Pt 1) (NSW) 442 Troulis v Vamvoukakis [1998] NSWCA 237
Texts Cited:	McGregor on Damages (15th Edition), Sweet & Maxwell
Category:	Principal judgment
Parties:	Splash Waterpark Pty Ltd (Plaintiff) Tim Schnitzerling (Defendant)
Representation:	Counsel: S Grey (Plaintiff) N Olson (Defendant) Solicitors: Vardanega Roberts (Plaintiff) MCK Lawyers (Defendant)
File Number(s):	2019/204374