Samahar Miski v Penrith Whitewater Stadium Ltd [2018] NSWDC 21

Samahar Miski v Penrith Whitewater Stadium Ltd [2018] NSWDC 21

The plaintiff did not prove any pleaded breach of duty or breach of statutory warranty. The court found that she signed a plain-English risk document, received adequate safety briefings, was warned about falling from the raft and the whitewater float position, and was supervised by competent staff. She fell near the second bridge, travelled about 75 metres in the current, and was in the rough water for only about 20 to 30 seconds, so there was no reasonable opportunity or requirement to rescue her by rope, and activating the Emergency Stop Button would have had no effect before she reached calm water. In any event, whitewater rafting was conceded to be a dangerous recreational activity...

Jurisdiction
Australia
Judgment Date
20 February 2018
Procedural Posture
Civil Claim in Negligence and Breach of the Australian Competition and Consumer Act (cth) Arising From a Whitewater Rafting Injury / Principal Judgment After Hearing
Outcome
Judgment for the defendant; plaintiff's claims in negligence and breach of statutory warranty dismissed.
Legal Topics
['whitewater Rafting Injury' 'reasonable Precautions' 'dangerous Recreational Activity' 'obvious Risk' 'inherent Risk' 'risk Warning' 'statutory Warranty' 'theoretical Assessment of Damages']
['torts' 'negligence' 'civil Liability' 'consumer Law'] ['whitewater Rafting Injury' 'reasonable Precautions' 'dangerous Recreational Activity' 'obvious Risk' 'inherent Risk' 'risk Warning' 'statutory Warranty' 'theoretical Assessment of Damages']

Case Brief

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Procedural Posture

Civil Claim in Negligence and Breach of the Australian Competition and Consumer Act (cth) Arising From a Whitewater Rafting Injury / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendant failed to take reasonable precautions against the risk of harm to the plaintiff during whitewater rafting.' 'Whether the defendant failed to give proper instruction or adequate warning about the risks of whitewater rafting.' 'Whether the defendant failed to employ competent staff or failed to observe and rescue the plaintiff after she fell from the raft.' 'Whether the Emergency Stop Button should have been activated.' 'Whether s 5L of the Civil Liability Act 2002 (NSW) barred liability because the harm resulted from the materialisation of an obvious risk of a dangerous recreational activity.' 'Whether s 5I of the Civil Liability Act 2002 (NSW) barred liability because the harm resulted from the materialisation of an inherent risk.']

Ratio Decidendi

The plaintiff did not prove any pleaded breach of duty or breach of statutory warranty. The court found that she signed a plain-English risk document, received adequate safety briefings, was warned about falling from the raft and the whitewater float position, and was supervised by competent staff. She fell near the second bridge, travelled about 75 metres in the current, and was in the rough water for only about 20 to 30 seconds, so there was no reasonable opportunity or requirement to rescue her by rope, and activating the Emergency Stop Button would have had no effect before she reached calm water. In any event, whitewater rafting was conceded to be a dangerous recreational activity...

Court Disposition

Judgment for the defendant; plaintiff's claims in negligence and breach of statutory warranty dismissed.

Orders

  • ['Judgment for the defendant.' "Order the plaintiff to pay the defendant's costs."]