Fleissig v Teamfox Pty Ltd & Ors [2001] NSWSC 286

Fleissig v Teamfox Pty Ltd & Ors [2001] NSWSC 286

Defendants Oran Park Motor Sport Pty Ltd (OPMS) and Teamfox Pty Ltd owed plaintiff a duty of care and breached it by failing to take reasonable precautions against a foreseeable risk (failure to adequately protect plaintiff from injury by unpadded concrete wall in course of race). Lopired Pty Ltd and Mr Ward established defence by virtue of a waiver/indemnity signed by the plaintiff, which was not found to be unjust or ineffective. Plaintiff was found contributorily negligent to the extent of 10% mainly due to his overtaking in breach of instruction. Damages assessed accordingly.

Jurisdiction
Australia
Judgment Date
19 April 2001
Procedural Posture
Civil / Judgment; Trial at First Instance
Outcome
Judgment for plaintiff against Teamfox Pty Ltd ($353,674) and OPMS ($549,067) less 10% for contributory negligence. Judgment for second and third defendants (Ward and Lopired) on basis of waiver. Further orders on cross-claims for contribution/indemnity as detailed. Liberty to apply as to calculation issues.
Legal Topics
['negligence' 'voluntary Assumption of Risk' 'personal Injury' 'damages' 'contributory Negligence' 'waiver and Indemnity' 'contracts Review Act' 'cross Claims' 'duties of Occupier' 'employment Injury' 'statutory Duty']
['tort' 'contracts' 'statutory Interpretation' 'workers Compensation'] ['negligence' 'voluntary Assumption of Risk' 'personal Injury' 'damages' 'contributory Negligence' 'waiver and Indemnity' 'contracts Review Act' 'cross Claims' 'duties of Occupier' 'employment Injury' 'statutory Duty']

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Procedural Posture

Civil / Judgment; Trial at First Instance

Legal Issues

  1. 1 ['Whether defendants breached duty of care owed to plaintiff in organisation/conduct of go-kart race' 'Whether waiver and indemnity agreement excludes/restricts liability for injury' 'Whether plaintiff voluntarily assumed risk' 'Whether and extent of contributory negligence by plaintiff' 'Assessment of damages for personal injury, economic and non-economic loss']

Ratio Decidendi

Defendants Oran Park Motor Sport Pty Ltd (OPMS) and Teamfox Pty Ltd owed plaintiff a duty of care and breached it by failing to take reasonable precautions against a foreseeable risk (failure to adequately protect plaintiff from injury by unpadded concrete wall in course of race). Lopired Pty Ltd and Mr Ward established defence by virtue of a waiver/indemnity signed by the plaintiff, which was not found to be unjust or ineffective. Plaintiff was found contributorily negligent to the extent of 10% mainly due to his overtaking in breach of instruction. Damages assessed accordingly.

Court Disposition

Judgment for plaintiff against Teamfox Pty Ltd ($353,674) and OPMS ($549,067) less 10% for contributory negligence. Judgment for second and third defendants (Ward and Lopired) on basis of waiver. Further orders on cross-claims for contribution/indemnity as detailed. Liberty to apply as to calculation issues.

Orders

  • ['Judgment for the plaintiff against Teamfox Pty Limited for $353,674.' 'Judgment for the plaintiff against Oran Park Motor Sport Pty Limited for $549,067.' 'Judgment for the second and third defendants against the plaintiff.' 'On the first cross-claim, judgment for the cross-claimant for $176,836.' 'On the second...