SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Stewart & Ors v Ackland |
Citation: | [2015] ACTCA 1 |
Hearing Date: | 21 August 2014 |
DecisionDate: | 12 February 2015 |
Before: | Penfold J, Walmsley and Robinson AJJ |
Decision: | 1. The appeal is dismissed. 2. The appellants are to pay the respondent’s costs. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL - General principles – Interference with Discretion of Court Below – whether trial judge erred in findings on liability TORTS – NEGLIGENCE – Personal injury – injury from performing backwards aerial somersault on jumping pillow – whether appellants breached duty of care – whether the accident was the materialisation of an “obvious risk” of a “dangerous recreational activity” under s 5L of the Civil Liability Act 2002 (NSW) – whether relevant breach caused the loss– appeal dismissed INTERPRETATION – Admissibility of extrinsic evidence in relation to instruments – admissibility of second reading speech where no ambiguity in legislative provision |
Legislation Cited: | Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5F, 5G, 5H, 5I, 5J, 5K, 5L, 5M Interpretation Act 1987 (NSW), ss 33, 34 Civil Liability Act 2003 (Qld), s 13 |
Cases Cited: | Agar v Hyde (2000) 201 CLR 552 Brennan v Comcare (1994) 50 FCR 555 |
Texts cited: | Second Reading Speech, Civil Liability Amendment (Personal Responsibility) Bill (NSW Parliamentary Debates (Hansard), Legislative Assembly, 23 October 2002, p 5765) |
Parties: | Patrick Joseph Stewart, Beryl Ann Vickery (Nee Stewart) and Michael Patrick Stewart (Appellants) Benjamin Allan Ackland (Respondent) |
Representation: | Counsel Mr J Sexton SC with Mr D Lloyd (Appellant) Mr P Webb QC with Mr L Grey (Respondent) |
| Solicitors Ken Cush & Associates as agents for Lee & Lyons Lawyers (Appellant) Maurice Blackburn Lawyers (Respondent) | |
File Number: | ACTCA 11 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 21 February 2014 Case Title: Benjamin Ackland v Patrick Joseph Stewart, Beryl Ann Vickery (Nee Stewart) and Michael Patrick Stewart Citation: [2014] ACTSC 18 Court File Number: SC443/10 |
PENFOLD J:
Introduction
I have read in draft the judgment of Walmsley AJ. I gratefully adopt his Honour’s description of the background to this appeal.
Notice of appeal
The amended notice…
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- Stewart v Ackland [2015] ACTCA 1
- Case
- [2015] ACTCA 1
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CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the appellants had breached their duty of care to the respondent, and whether the respondent's injury constituted the materialisation of an "obvious risk" of a "dangerous recreational activity" within the meaning of section 5L of the *Civil Liability Act 2002* (NSW). The court also considered whether any breach of duty by the appellants had caused the respondent's loss.
The Court of Appeal dismissed the appeal, upholding the trial judge's findings. The court reasoned that the appellants had failed to take reasonable precautions to prevent foreseeable harm, particularly in relation to the supervision and instruction provided to users of the jumping pillow. The court found that the risk of injury from performing a backwards aerial somersault was not an "obvious risk" in the context of the activity as conducted, and that the appellants' failure to adequately warn or supervise contributed to the respondent's injury. The court also found that the appellants' breach of duty caused the respondent's loss. The appeal was dismissed, and the appellants were ordered to pay the respondent's costs.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellants are to pay the respondent’s costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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