Stewart v Ackland

Case [2015] ACTCA 1


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
Campbell v Hay [2014] NSWCA 129
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Fallas v Mourlas (2006) 65 NSWLR 418
Falvo v Australian Oztag Sports Association [2006] Aust Torts Reports ¶81-831; [2006] NSWCA 17
Great Lakes Shire Council v Dederer [2006] NSWCA 101; [2006] Aust Torts Reports ¶81-860
Jaber v Rockdale City Council [2008] NSWCA 98
Kelly v State of Queensland [2013] QSC 106
Lormine Pty Ltd v Xuereb [2006] NSWCA 200
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
State of Queensland v Kelly [2014] QCA 27
StrellervAlbury City Council (2013) Aust Torts Reports ¶82-146
Stuart v Kirkland-Veenstra (2009) 237 CLR 215
Tame v NSW (2002) 211 CLR 317
Vairy v Wyong Shire Council (2005) 223 CLR 422

Wyong Shire Council v Vairy [2004] NSWCA 247

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

  1. 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

  1. The amended notice…

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AGLC
Stewart v Ackland [2015] ACTCA 1
Case
[2015] ACTCA 1
Decision Date

CaseChat Overview and Summary

Stewart (appellants) appealed to the Court of Appeal of New South Wales against the decision of the trial judge who found them liable for injuries sustained by Ackland (respondent) while using a jumping pillow. The respondent suffered a serious spinal injury when he fell backwards during a backwards aerial somersault. The appellants argued that the trial judge erred in their findings on liability.

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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