Nicol v Whiteoak & Anor (No 2) [2011] NSWSC 1486

Nicol v Whiteoak & Anor (No 2) [2011] NSWSC 1486

The deceased was negligent in causing injury to the plaintiff by driving a boat at excessive speed and under the influence of alcohol, causing a collision. The plaintiff was not shown to have engaged in a dangerous recreational activity for the purpose of s 5L, nor was she guilty of contributory negligence or volenti non fit injuria. There was no evidence of negligence on the part of the second defendant.

Jurisdiction
Australia
Judgment Date
05 December 2011
Procedural Posture
Tort Negligence / Principal Judgment (liability and Quantum)
Outcome
1. Judgment for the plaintiff against the first defendant in an amount to be reflected in Short Minutes of Order to be brought in. 2. Judgment for the second defendant against the plaintiff. 3. Judgment for the second defendant/ cross-defendant against the first defendant/cross claimant on the Amended Fourth...
Legal Topics
['negligence' 'dangerous Recreational Activity' 'contributory Negligence' 'volenti Non Fit Injuria']
['tort Law'] ['negligence' 'dangerous Recreational Activity' 'contributory Negligence' 'volenti Non Fit Injuria']

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Procedural Posture

Tort Negligence / Principal Judgment (liability and Quantum)

Legal Issues

  1. 1 ['Whether the deceased was negligent in causing injury to the plaintiff' 'Whether the second defendant was negligent' "Whether the plaintiff engaged in a 'dangerous recreational activity' under s 5K/L Civil Liability Act 2002 (NSW)" 'Whether the plaintiff was guilty of contributory negligence' 'Whether the defence of volenti non fit injuria applies']

Ratio Decidendi

The deceased was negligent in causing injury to the plaintiff by driving a boat at excessive speed and under the influence of alcohol, causing a collision. The plaintiff was not shown to have engaged in a dangerous recreational activity for the purpose of s 5L, nor was she guilty of contributory negligence or volenti non fit injuria. There was no evidence of negligence on the part of the second defendant.

Court Disposition

1. Judgment for the plaintiff against the first defendant in an amount to be reflected in Short Minutes of Order to be brought in. 2. Judgment for the second defendant against the plaintiff. 3. Judgment for the second defendant/ cross-defendant against the first defendant/cross claimant on the Amended Fourth...

Orders

  • ['Judgment for the plaintiff against the first defendant (quantum to be finalised in Short Minutes of Order).' 'Judgment for the second defendant against the plaintiff.' 'Judgment for the second defendant/cross-defendant against the first defendant/cross claimant on the Amended Fourth Cross-Claim.']