GOWAN v HARDIE and ANOR [1991] NSWCA 126

GOWAN v HARDIE and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 21 October 1991, 8 November 1991

[1991] NSWCA 126 CONTRACT — EXEMPTION CLAUSE — CONTRACTS REVIEW ACT s9(2).

CONTRACT — Contract for parachute jump — Construction of exemption clause — Whether clause operated to protect servants and agents. CONTRACTS REVIEW ACT — Whether failure of trial judge to make specific findings in relation to s9(2) constituted appealable error — Whether exemption clause to be varied or declared void.

HELD (1) The clause was not ambiguous. It was expressed in general terms applicable to all possible situations and on its face was for the benefit of both the second respondent, and its servants and agents. (2) A trial judge did not fall into legal error merely because, in a simple case under the Contracts Review Act, he failed to make specific findings. (3) Relief under the Contracts Review Act was rightly refused by the trial judge.

Appeal dismissed with costs.

Contracts Review Act 1980 s7(1); s9(1) and s9(2) Darlington Futures Ltd v Delco (1986) 161 CLR 500 Antonovic v Volker (1986) 7 NSWLR 151 Midland Silicones v Scruttons [1962] AC 446

Clarke JA I agree with Handley JA. Meagher JA I agree with Handley JA.

Handley JA This is an appeal by the plaintiff from judgment for the defendants entered by Shillington DCJ in proceedings arising out of injuries sustained by her in the course of a parachute jump at Collector on 22 February 1986. The first respondent Sophie Hardie was the pilot of the Cessna aircraft from which the appellant jumped. The second respondent was the operator of the Canberra Sport Parachute Centre and had organised the jump.

I take the following facts, which were not in dispute, from the judgment of the trial judge. On Tuesday 18 February 1986 the appellant made an application to the second respondent for parachute training she not having engaged in the sport previously. At the same time she made an application for membership of the Australian