Barrett v Lets Go Adventures Pty Ltd [2016] NSWDC 345

Barrett v Lets Go Adventures Pty Ltd [2016] NSWDC 345

The plaintiff, as a participant in recreational diving services, was a 'consumer' under the ACL. The defendant breached the guarantees of due care and skill and sufficient emergency provisions required by the ACL when it failed to provide adequate oxygen and failed to provide appropriate assistance; this breach caused the plaintiff's decompression illness when rescuing another diver. The 'good Samaritan' provisions applied, precluding any finding of contributory negligence. The plaintiff was entitled to judgment for damages, to be agreed, with costs.

Jurisdiction
Australia
Judgment Date
25 November 2016
Procedural Posture
Civil / Principal Judgment After Trial
Outcome
Judgment for the plaintiff.
Legal Topics
['australian Consumer Law' 'duty of Care' 'good Samaritan Legislation' 'contributory Negligence' 'quantum of Damages' 'civil Liability Act' 'waiver and Risk Warning' 'causation']
['personal Injury' 'consumer Law' 'negligence'] ['australian Consumer Law' 'duty of Care' 'good Samaritan Legislation' 'contributory Negligence' 'quantum of Damages' 'civil Liability Act' 'waiver and Risk Warning' 'causation']

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Procedural Posture

Civil / Principal Judgment After Trial

Legal Issues

  1. 1 ['Whether the plaintiff is a consumer under the ACL' 'Whether the defendant breached the guarantees under ss 60 or 61 of the ACL' 'Interaction of the ACL and the Civil Liability Act for defences and quantum' 'Availability and adequacy of oxygen and safety procedures during a diving excursion' "Applicability of the Civil Liability Act 'good Samaritan' provisions." 'Whether the plaintiff contributed to the injury or failed to mitigate loss']

Ratio Decidendi

The plaintiff, as a participant in recreational diving services, was a 'consumer' under the ACL. The defendant breached the guarantees of due care and skill and sufficient emergency provisions required by the ACL when it failed to provide adequate oxygen and failed to provide appropriate assistance; this breach caused the plaintiff's decompression illness when rescuing another diver. The 'good Samaritan' provisions applied, precluding any finding of contributory negligence. The plaintiff was entitled to judgment for damages, to be agreed, with costs.

Court Disposition

Judgment for the plaintiff.

Orders

  • ['Judgment for the plaintiff.' 'Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed damages sum.' "Defendant pay plaintiff's costs." 'Liberty to apply in relation to interest and costs.']