Action Paintball Games Pty Ltd (In liquidation) v Barker [2013] NSWCA 128

 

Decision:
Interlocutory orders:(1) Upon the agreement of the parties as to indemnity as to the respondent’s costs, grant the appellant leave to proceed in relation to this appeal pursuant to s 471B of the Corporations Act 2001 (Cth), such leave to be qualified by the right of the liquidator to move the Court for any variation which he may think fit upon giving consideration to the nature of the proceedings.(2) The appellant is now Action Paintball Games Pty Ltd (In liquidation)

Final orders:

(1) Allow the appeal and set aside orders 1-3 made in the District Court on 15 December 2011.

(2) In place of those orders:

(a) give judgment for the defendant;
(b) order the plaintiff to pay the defendant’s costs of the trial.

(3) Order the respondent to pay the appellant’s costs in this Court.

(4) Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court’s computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
TORTS – negligence – duty of care – s 5M Civil Liability Act 2002 (NSW) – whether appellant gave “risk warning” regarding recreational activity – where warning as to general risks given – where no specific warning given as to risk which materialised – where warning as to general kind of risk adequate – impermissibility of hindsight reasoning – whether failure to warn causative of harm – where trial judge failed to identify content, form or timing of required warning – where warning in fact given – where warning spoke of general risks – where appellant occupied land on which it ran laser tag and paintball activities – game played in area of natural bushland – appellant failed to remove protruding tree root from ground – respondent tripped on tree root and fell – whether a reasonable person in the appellant’s position would have removed all such obstacles – risk of harm through tripping and falling – social utility of recreational activity. 

David Cormack – Brisbane Barrister. 

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