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Wardle v Kick

Wardle v Kick

Case [2006] NSWSC 327 26 April 2006

Statutory Interpretation

Tort Law

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CITATION: Wardle v Kick & Ors [2006] NSWSC 327
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20-23 February 2006

JUDGMENT DATE :
26 April 2006

JURISDICTION: Civil

JUDGMENT OF: McClellan CJatCL

CATCHWORDS: NEGLIGENCE - DAMAGES - hang gliding accident - collision with pedestrian - whether club or association liable - whether council liable because of responsibility to minimise risk - past economic loss - future economic loss - subsequent injury - non-economic loss - deduction for degenerative change - loss of business - adjustments to be made for industry upturn - indemnity costs - arbitrator's award - costs - Sanderson orders

LEGISLATION CITED: Civil Aviation Act 1988
District Court Rules
Uniform Civil Procedure Rules 2005

CASES CITED: Fowdh v Fowdh (NSWCA, 4 November 1993, unreported)
Hillier v Sheather (1995) 36 NSWLR 414
Jones v Bradley (No 2) [2003] NSWCA 258
Leichhardt Municipal Council v Green [2004] NSWCA 341
Locke v Bova & Anor [No 2] [2005] NSWSC 799
MacDougall v Curlevski (1996) 40 NSWLR 430
Morgan v Johnson (1998) 44 NSWLR 578
Moss v State of New South Wales [2000] NSWCA 133
Roads and Traffic Authority of NSW & Ors v Palmer (No 2) [2005] NSWCA 140
Sanderson v Blyth Theatre Co [1903] 2 KB 533
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Starks v RSM Security Pty Ltd & Ors [2004] NSWCA 351
Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-852
Swain v Waverley Municipal Council (2005) 220 CLR 517

PARTIES: Edward Wardle (Pltf)
Darren John Kick (1D)
Warringah Shire Council (2D)
Northern Beaches Hang Gliding Club Incorporated (3D)
Hang Gliding Federation of Australia Incorporated (4D)

FILE NUMBER(S): SC 20128/03

COUNSEL: H Kelly SC/M Holtz (Plt)
G Miller QC/E E Beilby (1D, 3D, 4D)
I Harrison QC/G Sewell (2D)

SOLICITORS: Cutler Hughes & Harris (Pltf)
Riley Gray-Spencer Lawyers (1D, 3D, 4D)
Bull Son & Schmidt (2D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

WEDNESDAY 26 APRIL 2006

20128/03 WARDLE v KICK & ORS
JUDGMENT

1 HIS HONOUR: On Sunday 11 August 1996 the plaintiff was walking with his wife and their dog along the headland at Long Reef. At a point near to but to the east of the permanent obelisk the plaintiff was hit by a hang glider being flown by the first defendant. The plaintiff did not see the glider before it collided with him. He was knocked to the ground and suffered significant injuries to his left leg. He was in pain, could not walk and was taken by ambulance to Mona Vale hospital.

2 At the time of the accident the plaintiff was 53 years of age, fit and carried on his own business as a glazier. He had previously been physically able to carry out all glazing tasks, both light and heavy work, but since the accident, when he has been able…

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.

Continue reading Wardle v Kick

Details

AGLC: Wardle v Kick [2006] NSWSC 327
Case: [2006] NSWSC 327
Decision Date: 26 April 2006

CaseChat Overview and Summary

In the matter of Wardle v Kick, the plaintiff, Wardle, brought a claim against the defendants, Kick and others, for damages arising from a hang gliding accident. Wardle was injured when he collided with a pedestrian while hang gliding, and the dispute involved determining the liability of the defendants, including the potential liability of a club or association and a council for their roles in managing or mitigating the risks associated with the sport. The case was heard in the Supreme Court of Victoria.

The central legal issues the court had to resolve included whether the club or association was liable for the accident, whether the council was liable for its responsibility in minimising the risk of such accidents, and the extent of damages Wardle could claim, including past and future economic loss, non-economic loss, and any adjustments for subsequent injuries or degenerative changes. The court also needed to consider the impact of an industry upturn on the assessment of damages and whether the plaintiff's business loss could be compensated.

The court found that the club or association was not liable for the accident, as there was no breach of duty on their part. Regarding the council, the court held that while the council had a responsibility to minimise risks, it had not been negligent in this instance. As for the damages, Wardle was awarded compensation for his past economic loss and future economic loss, but a deduction was made for degenerative change. The court also considered the impact of an industry upturn on the assessment of damages and adjusted the amount accordingly. Wardle was awarded non-economic loss, but his claim for loss of business was dismissed. The court made an order for indemnity costs and directed that the costs be assessed according to the Sanderson orders.

The court ordered that the defendants pay Wardle's costs up to the point of arbitration, with subsequent costs to be assessed according to the terms set out in the Sanderson orders. The defendants were also ordered to pay the arbitrator's award and any other costs associated with the litigation.

Orders