Mahon v The Paintball Place Pty Ltd & Anor [2010] NSWDC 124

New South Wales District Court

CITATION: Mahon v The Paintball Place Pty Ltd & Anor [2010] NSWDC 124

HEARING DATE(S): 25, 26, February & 21 May 2010

JUDGMENT DATE: 1 July 2010

JURISDICTION: Civil

JUDGMENT OF: Levy SC DCJ

1. Pursuant to UCPR r 28.2, order for the question of liability to be determined separately from the issue of damages; 2. Following an ex-parte hearing of the liability claim against the first defendant, verdict and judgment for the plaintiff against the first defendant for assault, with damages to be assessed; 3. Verdict and judgment for the second defendant on the plaintiff's claim against the second defendant; DECISION: 4. First defendant to pay the plaintiff's costs of the plaintiff's claim against the first defendant on the ordinary basis, unless otherwise ordered; 5. Plaintiff to pay the second defendant's costs on the ordinary basis, unless otherwise ordered; 6. Exhibits may be returned; 7. Liberty to apply on 7 days notice if further orders are required.

CATCHWORDS: TORTS – negligence – liability determined as a separate question –assault on plaintiff by first defendant – participant in recreational activities – game known as paintball skirmish – liability of first defendant for assault – liability of second defendant occupier and organiser of recreational activities – whether liability excluded – consideration of liability pursuant to Civil Liability Act 2002

Civil Liability Act 2002 LEGISLATION CITED: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Belna Pty Limited v Irwin [2009] NSWCA 46 Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135 CASES CITED: Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 11 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 42 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40