Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394

Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394

The appeal was allowed because the risk that materialised was the risk of slipping and falling while descending stairs in skating boots, and that risk would have been obvious to a reasonable person in the respondent's position. The precautions found by the primary judge to be required were forms of warning of that same obvious risk. As no exception in s 5H(2) was suggested to apply, s 5H(1) meant that the appellant owed no duty of care to warn the respondent of that obvious risk. The negligence finding based on failure to warn therefore could not stand.

Jurisdiction
Australia
Judgment Date
18 November 2014
Procedural Posture
Appeal in Negligence Proceedings From the District Court of New South Wales / Appeal From Finding of Liability and Judgment for Damages
Outcome
Appeal allowed; District Court orders set aside; judgment entered for the appellant.
Legal Topics
['obvious Risk' 'duty to Warn' 'dangerous Recreational Activity' 'risk Warning' 'contributory Negligence' 'civil Liability Act 2002 (nsw)']
['torts' 'negligence' 'civil Liability' "occupiers' Liability"] ['obvious Risk' 'duty to Warn' 'dangerous Recreational Activity' 'risk Warning' 'contributory Negligence' 'civil Liability Act 2002 (nsw)']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal in Negligence Proceedings From the District Court of New South Wales / Appeal From Finding of Liability and Judgment for Damages

Legal Issues

  1. 1 ['Whether the primary judge erroneously proceeded on the basis that the duty of care required the appellant to avoid, rather than take reasonable care to avoid, foreseeable risks of harm.' 'Whether the risk of slipping and falling while descending stairs in ice skating boots was an obvious risk within s 5F of the Civil Liability Act 2002 (NSW).' 'Whether the duty of care found by the primary judge was a duty to warn of an obvious risk within s 5H(1) of the Civil Liability Act 2002 (NSW).' 'Whether a reasonable occupier would have warned patrons not to put on ice skates before descending the stairs or warned them how to descend safely in skates.' 'Whether descending the stairs in skating boots was part of the dangerous recreational activity of ice skating.' "Whether the 'No Responsibility' notice was a risk warning covering the risk of descending the stairs in skating boots." 'Whether the respondent was guilty of contributory negligence.']

Ratio Decidendi

The appeal was allowed because the risk that materialised was the risk of slipping and falling while descending stairs in skating boots, and that risk would have been obvious to a reasonable person in the respondent's position. The precautions found by the primary judge to be required were forms of warning of that same obvious risk. As no exception in s 5H(2) was suggested to apply, s 5H(1) meant that the appellant owed no duty of care to warn the respondent of that obvious risk. The negligence finding based on failure to warn therefore could not stand.

Court Disposition

Appeal allowed; District Court orders set aside; judgment entered for the appellant.

Orders

  • ['Appeal allowed.' 'Set aside orders of the District Court (Levy DCJ) made on 25 June 2013.' 'Judgment for the appellant in the proceedings.' "Respondent to pay the appellant's costs of the proceedings at first instance and of the appeal but to have, with respect to the latter, a Certificate under the Suitors' Fund...