Kishore Rohra v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) & Anor -(13/158497); Shivani Talwar v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) & Anor - (13/158533); Brenden John Barnes v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) & Anor - (13/158536); Marta Barnes v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) & Anor - (13/158541); Adam Barnes v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) & Anor - (13/158547); Vanessa Pillinger v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) & Anor - (13/158553) [2016] NSWDC 78

Kishore Rohra v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) & Anor -(13/158497); Shivani Talwar v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) & Anor - (13/158533); Brenden John Barnes v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) & Anor - (13/158536); Marta Barnes v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) & Anor - (13/158541); Adam Barnes v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) & Anor - (13/158547); Vanessa Pillinger v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) & Anor - (13/158553) [2016] NSWDC 78

The defendants were vicariously liable for the negligence of the master of Extreme II. The court found that the vessel approached a larger wave of between 2 and 2.5 metres, accelerated into it at excessive speed, ascended at about 45 degrees, became airborne and landed with significant force. A reasonable master would have taken the low-burden precautions identified by the plaintiffs' expert, including approaching at a safer speed and angle. That breach was a necessary condition of the plaintiffs' injuries and liability extended to the harm. The Civil Liability Act defences failed because the relevant risk of serious injury from the manner of operation was not an obvious risk, was not an...

Jurisdiction
Australia
Judgment Date
13 May 2016
Procedural Posture
Civil Personal Injury Proceedings in Negligence, Breach of Contract and Trade Practices Act Claim / Principal Judgment After Liability Hearing Limited to Primary Liability and Contributory Negligence
Outcome
Verdict for the plaintiffs.
Legal Topics
['negligence' 'contributory Negligence' 'breach of Contract' 'implied Warranty Under S 74 of the Trade Practices Act 1974 (cth)' 'recreational Activity Risk Warnings' 'dangerous Recreational Activity' 'obvious Risk' 'inherent Risk' 'vicarious Liability']
['torts' 'contract Law' 'consumer Law' 'civil Liability'] ['negligence' 'contributory Negligence' 'breach of Contract' 'implied Warranty Under S 74 of the Trade Practices Act 1974 (cth)' 'recreational Activity Risk Warnings' 'dangerous Recreational Activity' 'obvious Risk' 'inherent Risk' 'vicarious Liability']

Case Brief

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Procedural Posture

Civil Personal Injury Proceedings in Negligence, Breach of Contract and Trade Practices Act Claim / Principal Judgment After Liability Hearing Limited to Primary Liability and Contributory Negligence

Legal Issues

  1. 1 ['Whether any provision of the Civil Liability Act 2002 (NSW) relied on by the defendants absolved them from the duty of care owed to the plaintiffs.' 'Whether the master of the vessel Extreme II was negligent in the way he managed or controlled the vessel in the prevailing conditions.' 'Whether there was a contract between each of the plaintiffs and the defendants, or any of them, and if so what its terms were.' 'Whether there was a breach of contractual terms.' 'Whether s 74 of the Trade Practices Act 1974 (Cth) applied and whether there was a breach of the implied warranty that services be rendered with due care and skill.' 'Whether any plaintiff contributed to their own injury by contributory negligence.']

Ratio Decidendi

The defendants were vicariously liable for the negligence of the master of Extreme II. The court found that the vessel approached a larger wave of between 2 and 2.5 metres, accelerated into it at excessive speed, ascended at about 45 degrees, became airborne and landed with significant force. A reasonable master would have taken the low-burden precautions identified by the plaintiffs' expert, including approaching at a safer speed and angle. That breach was a necessary condition of the plaintiffs' injuries and liability extended to the harm. The Civil Liability Act defences failed because the relevant risk of serious injury from the manner of operation was not an obvious risk, was not an...

Court Disposition

Verdict for the plaintiffs.

Orders

  • ['In each case there will be a verdict for the plaintiff.' 'The matters are to be stood over for call-over before the List Judge for directions and to allocate a hearing date on damages (on a date to be allocated on 10/6/16).' "The defendants are to pay the plaintiffs' costs on the liability hearing." 'The plaintiff...