Daniel Russell Tillman v Kelso Australia Pty Ltd t/as Moree Hot Springs Health Resort [2008] NSWDC 199

New South Wales District Court

CITATION: Daniel Russell Tillman v Kelso Australia Pty Ltd t/as Moree Hot Springs Health Resort [2008] NSWDC 199

HEARING DATE(S): 23 - 24 September 2008

JUDGMENT DATE: 30 October 2008

JURISDICTION: Civil

JUDGMENT OF: Goldring DCJ

DECISION: Verdict for the plaintiff in the sum of $358,719.

CATCHWORDS: TORTS - Negligence - Duty of motel operator to family registered guest - Defences: contributory negligence - Defences: voluntary assumption of risk - Civil Liability Act - "inherent risk" - "obvious risk"

LEGISLATION CITED: Civil Liability Act 2002

Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 Caterson v Commissioner for Railways (1973) 128 CLR 99 CASES CITED: Sayers v Harlow Urban District Council [1958] 1 WLR 623 Romeo v The Conservation Commission of the Northern Territory (1998) 192 CLR 431 Harrison v Melhem [2008] NSWCA 67

PARTIES: Daniel Russell Tillman (Plaintiff) Kelso Australia Pty Ltd t/as Moree Hot Springs Health Resort (Defendant)

FILE NUMBER(S): 6274 of 2006

COUNSEL: L T Grey (Plaintiff) M Fordham (Defendant)

SOLICITORS: Slater & Gordon Lawyers (Plaintiff) Curwoods Lawyers (Defendant)

JUDGMENT

1 HIS HONOUR: Daniel Tillman claims compensation for injuries he suffered when he fell while attempting to climb over a security fence to gain entry to the motel at Moree where he was staying. This was owned at the time by Kelso Australia Pty Limited trading as Moree Hot Springs Health Resort (Kelso).

The issues

2 The claim is expressed to be both in negligence and for breach of contract. If I find that the tort claim can be sustained, then I must consider issues of contributory negligence. If I find for him on liability, there are also contested issues as to the amount of damages to which Mr Tillman is entitled.