Carlisle v Mullrai Pty Ltd & Ors; Atkinson v Mullrai Pty Ltd & Ors [2000] NSWCA 190

Carlisle v Mullrai Pty Ltd & Ors; Atkinson v Mullrai Pty Ltd & Ors [2000] NSWCA 190

The risk that the plaintiffs would unauthorisedly take and ride the ATV after it had been parked in the shed with the key in the ignition was far-fetched or fanciful. On Matthew's evidence the plaintiffs were not near the ATV when he left it, and on Mrs Mulligan's evidence taken at its highest the plaintiffs were merely sitting on the rear rack, near one plaintiff's parents, during a hurried departure. A reasonable person in either position would not have foreseen the relevant risk, so no breach of duty was established.

Jurisdiction
Australia
Judgment Date
03 August 2000
Procedural Posture
Appeal in Negligence Actions for Personal Injuries / Appeal From Two Decisions of Newman J Dismissing the Plaintiffs' Negligence Actions After Trial
Outcome
Appeal dismissed with costs.
Legal Topics
['foreseeability of Risk' 'breach of Duty of Care' 'all Terrain Vehicle Accident' "children's Cases and Allurement" 'occupier and Farming Property']
['torts' 'negligence' 'personal Injury'] ['foreseeability of Risk' 'breach of Duty of Care' 'all Terrain Vehicle Accident' "children's Cases and Allurement" 'occupier and Farming Property']

Case Brief

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Procedural Posture

Appeal in Negligence Actions for Personal Injuries / Appeal From Two Decisions of Newman J Dismissing the Plaintiffs' Negligence Actions After Trial

Legal Issues

  1. 1 ['Whether leaving an All Terrain Vehicle in a shed with the ignition key in it created a foreseeable risk that the sixteen year old plaintiffs would take and ride it without permission.' 'Whether the defendants breached any duty of care by failing to remove the ignition key or warn the plaintiffs not to ride the ATV.' "Whether the ATV with the key in the ignition constituted an allurement within the meaning of the children's cases."]

Ratio Decidendi

The risk that the plaintiffs would unauthorisedly take and ride the ATV after it had been parked in the shed with the key in the ignition was far-fetched or fanciful. On Matthew's evidence the plaintiffs were not near the ATV when he left it, and on Mrs Mulligan's evidence taken at its highest the plaintiffs were merely sitting on the rear rack, near one plaintiff's parents, during a hurried departure. A reasonable person in either position would not have foreseen the relevant risk, so no breach of duty was established.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']