BARESIC v. SLINGSHOT HOLDINGS PTY. LIMITED & ANOR. [2004] NSWCA 464

New South Wales Court of Appeal

CITATION : BARESIC v. SLINGSHOT HOLDINGS PTY. LIMITED & ANOR. [2004] NSWCA 464 HEARING DATE(S) : 18/11/2004 JUDGMENT DATE : 15 December 2004

JUDGMENT OF : Mason P at 1; Beazley JA at 2; Bryson JA at 48 DECISION : 1. Appeal allowed.; 2. Set aside the verdict and judgment in the Court below.; 3. Set aside the trial judge's order 2 as to costs.; 4. Judgment for the plaintiff in the sum of $318,267.06 to date from 8 April 2004. Verdict accordingly.; 5. The respondents to pay the appellant's costs at first instance and on appeal.; 6. The respondents are to have a certificate under the Suitors Fund Act 1951 (NSW) in respect of the costs of the appeal if so entitled.; 7. The parties are to file submissions in relation to whether costs should be on a solicitor/client basis from 16 January 2004 and whether the costs of the appeal should be on an indemnity basis as follows:; a. respondents to file their written submissions by 31 January 2005.; b. appellants to file submissions in reply by 7 February 2005.

CATCHWORDS : NEGLIGENCE - Duty of care - Foreseeable risk of injury - Breach - Amusement machine not inherently unsafe - Manner of operation of amusement ride - Failure to give appropriate warning and to supervise riders to ensure compliance with warning. - REASONS - Appellant's case based on need for both clear warning and strict supervision - Failure to determine case on basis advanced. LEGISLATION CITED : Suitors' Fund Act 1951 (NSW) Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934 CASES CITED : Tame v. New South Wales (2002) 211 CLR 317 Wyong Shire Council v. Shirt (1980) 146 CLR 40 Anite Baresic (Appellant) PARTIES : Slingshot Holdings Pty. Limited (First Respondent) Funtime Industries Pty. Limited (Second Respondent) FILE NUMBER(S) : CA 40344/2004 COUNSEL : L.T. Grey (Appellant) R.B. Toomey QC/G. Charteris (Respondents) SOLICITORS : McClellands (Appellant) McMahons National Lawyers (Brisbane) (Respondents)