SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Whittington v Smeaton |
Citation: | [2016] ACTSC 76 |
Hearing Dates: | 4-6 April 2016 |
DecisionDate: | 18 April 2016 |
Before: | Mossop AsJ |
Decision: | See [118] |
Catchwords: | TORTS – NEGLIGENCE – personal injury – injury sustained after falling off a jet ski – whether defendants in breach of duty to take precautions against risk of harm – Civil Liability Act 2003 (Qld), s 9 TORTS – NEGLIGENCE – Civil Liability Act 2003 (Qld), s 19 – whether the injury was an obvious risk of a dangerous recreational activity – riding as observer on a jet ski towing a waterskier found to be a recreational activity – assessment of whether or not activity is dangerous turns on particular circumstances of the case – harm suffered must have been an obvious risk – obvious to a reasonable person in plaintiff’s position – activity found not to be dangerous – harm suffered not a manifestation of an obvious risk INSURANCE – exemption clause in insurance policy contract – Insurance Contracts Act 1984 (Cth), s 54 – power to refuse to pay claim by reason of act of insured – act must be capable of being reasonably regarded as being capable of causing or contributing to a loss – low threshold test – insurer not able to refuse to pay where no part of the loss that gave rise to the claim was caused by act – absence of licence not found to have caused any part of the loss giving rise to the claim |
Legislation Cited: | Acts Interpretation Act 1954 (Qld), s 14(3) Civil Laws (Wrongs) Act 2003 (ACT), s 45 |
Cases Cited: | Benic v State of New South Wales [2010] NSWSC 1039 Campbell v Hay [2014] NSWCA 129 |
Parties: | Mr Nathan Whittington (Plaintiff) Mr Todd Smeaton (First Defendant) Mr Scott Smeaton (Second Defendant) Allianz Insurance Australia Limited (Third Party) |
Representation: | Counsel Mr A Black S.C, Mr J Wilson (Plaintiff) Mr G Smith (Defendants) Mr D Lloyd (Third Party) |
| Solicitors Stacks Southern Lawyers (Plaintiff) Johnston Legal (Defendants) McCullough Robertson Lawyers (Third Party) | |
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- Whittington v Smeaton [2016] ACTSC 76
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- [2016] ACTSC 76
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CaseChat Overview and Summary
The court had to determine whether the defendants were negligent in failing to take reasonable care to avoid the risk of harm, as required by section 9 of the Civil Liability Act 2003 (Qld). The court also assessed whether the activity of riding as an observer on a jet ski towing a waterskier constituted a dangerous recreational activity, and if the injury was an obvious risk of that activity under section 19 of the same Act. The court found that the activity was not inherently dangerous and the injury was not an obvious risk, as it was not apparent to a reasonable person in the plaintiff's position. Furthermore, the court evaluated the insurer's power under section 54 of the Insurance Contracts Act 1984 (Cth) to refuse to pay the claim due to the insured's act, concluding that the insurer could not refuse payment as the absence of a licence did not cause any part of the loss.
The District Court found in favour of the plaintiff, ruling that the defendants were liable for the injuries sustained by the plaintiff. The court held that the defendants breached their duty of care and were thus liable for damages. Additionally, the court determined that the exemption clause in the insurance policy did not apply, as the insurer could not refuse to pay the claim on the grounds that the absence of a licence did not contribute to the loss. The court awarded the plaintiff compensation for his injuries, medical expenses, and other related costs.
The final orders of the court included a determination that the defendants were liable for the plaintiff's injuries, and an award of damages to the plaintiff. The court also ruled that the insurance company was not entitled to refuse payment of the claim based on the exemption clause in the policy. The plaintiff was thus entitled to full compensation for his losses as a result of the accident.
Orders
Orders of the court
See [118]
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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