LORMINE PTY LTD & ANOR v XUEREB [2006] NSWCA 200

LORMINE PTY LTD & ANOR v XUEREB [2006] NSWCA 200

The waiver defence failed because the dealings did not convey that the form was contractual or a variation of the existing contract, its contractual effect was misrepresented as being for head count purposes, and in any event clause 4 was too ambiguous and was not construed to release claims for sightseeing injuries. The negligence findings were open on the evidence: the captain failed to keep a proper lookout and exposed passengers on the bow to a significant wave risk near the wave zone. The statutory defences failed because the dolphin watching cruise as represented was not shown to be a dangerous recreational activity involving the relevant obvious risk, and the injuries were caused...

Jurisdiction
Australia
Judgment Date
25 July 2006
Procedural Posture
Negligence Personal Injury Appeal / Appeal From the District Court of New South Wales
Outcome
Appeal allowed in part; cross-appeal dismissed with no order as to costs.
Legal Topics
['dangerous Recreational Activity' 'obvious Risk' 'inherent Risk' 'dolphin Watch Cruise' 'exclusion Clause' 'waiver of Liability' 'incorporation by Signature' 'contra Proferentem' 'economic Loss' 'non Economic Loss']
['negligence' 'civil Liability' 'personal Injury Damages' 'contract'] ['dangerous Recreational Activity' 'obvious Risk' 'inherent Risk' 'dolphin Watch Cruise' 'exclusion Clause' 'waiver of Liability' 'incorporation by Signature' 'contra Proferentem' 'economic Loss' 'non Economic Loss']

Case Brief

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Procedural Posture

Negligence Personal Injury Appeal / Appeal From the District Court of New South Wales

Legal Issues

  1. 1 ["Whether the respondent's participation in the dolphin watching cruise or sitting on the foredeck was a dangerous recreational activity involving an obvious risk under the Civil Liability Act 2002." "Whether the respondent's injuries resulted from the materialisation of an inherent risk under s 5I of the Civil Liability Act 2002." 'Whether the appellants could rely on the signed release or waiver form to exclude liability.' "Whether the trial judge's findings of negligence against the captain should be disturbed." 'Whether the awards for non-economic loss, past wage loss and future loss of earning capacity were excessive or unsupported by evidence.']

Ratio Decidendi

The waiver defence failed because the dealings did not convey that the form was contractual or a variation of the existing contract, its contractual effect was misrepresented as being for head count purposes, and in any event clause 4 was too ambiguous and was not construed to release claims for sightseeing injuries. The negligence findings were open on the evidence: the captain failed to keep a proper lookout and exposed passengers on the bow to a significant wave risk near the wave zone. The statutory defences failed because the dolphin watching cruise as represented was not shown to be a dangerous recreational activity involving the relevant obvious risk, and the injuries were caused...

Court Disposition

Appeal allowed in part; cross-appeal dismissed with no order as to costs.

Orders

  • ['Appeal allowed in part.' "Reduce the plaintiff's verdict from $171,548 to $64,720." "Respondent to pay one-half of appellants' costs of the appeal and to have a certificate under the Suitors' Fund Act 1951, if qualified." 'Liberty to apply to adjust the costs order referable to the trial costs in light of any...