BARESIC v. SLINGSHOT HOLDINGS PTY. LIMITED & ANOR. [2004] NSWCA 464

BARESIC v. SLINGSHOT HOLDINGS PTY. LIMITED & ANOR. [2004] NSWCA 464

The expert evidence established, expressly and by implication, that there was a foreseeable risk of neck injury unless the Slingshot was operated in optimal conditions and carefully managed. The appellant's case required consideration of both strict instructions and strict supervision, but the trial judge decided the case only as a warning case. Because the appellant was launched while leaning forward and turning her head, in the maximal position for likely injury, the respondents breached their duty of care by failing to give strict warnings and by failing to supervise riders to ensure compliance before release.

Jurisdiction
Australia
Judgment Date
15 December 2004
Procedural Posture
Negligence Appeal Concerning Personal Injury on an Amusement Ride / Appeal From District Court Verdicts for the Respondents
Outcome
Appeal allowed; judgment entered for the appellant.
Legal Topics
['duty of Care' 'foreseeable Risk of Injury' 'breach of Duty' 'warnings' 'supervision of Amusement Ride Users' 'costs']
['negligence' 'personal Injury' 'civil Procedure'] ['duty of Care' 'foreseeable Risk of Injury' 'breach of Duty' 'warnings' 'supervision of Amusement Ride Users' 'costs']

Case Brief

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Procedural Posture

Negligence Appeal Concerning Personal Injury on an Amusement Ride / Appeal From District Court Verdicts for the Respondents

Legal Issues

  1. 1 ["Whether the appellant's neck injury was a reasonably foreseeable risk of operating the Slingshot amusement ride." 'Whether the respondents breached their duty of care by failing to give clear and strict instructions to keep the head and neck positioned within the brace and to supervise compliance before launch.' 'Whether the trial judge failed to determine the negligence case on the basis advanced by the appellant.' 'Whether a warning alone would have prevented the injury.']

Ratio Decidendi

The expert evidence established, expressly and by implication, that there was a foreseeable risk of neck injury unless the Slingshot was operated in optimal conditions and carefully managed. The appellant's case required consideration of both strict instructions and strict supervision, but the trial judge decided the case only as a warning case. Because the appellant was launched while leaning forward and turning her head, in the maximal position for likely injury, the respondents breached their duty of care by failing to give strict warnings and by failing to supervise riders to ensure compliance before release.

Court Disposition

Appeal allowed; judgment entered for the appellant.

Orders

  • ['Appeal allowed.' 'Set aside the verdict and judgment in the Court below.' "Set aside the trial judge's order 2 as to costs." 'Judgment for the plaintiff in the sum of $318,267.06 to date from 8 April 2004. Verdict accordingly.' "The respondents to pay the appellant's costs at first instance and on appeal." 'The...