Harris v Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Anor [2011] NSWDC 172

District Court New South Wales

Medium Neutral Citation: Harris v Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Anor [2011] NSWDC 172 Hearing dates: 09/08/11-12/08/11, 26/10/11-28/10/11, 31/10/11, 2/11/11 Decision date: 10 November 2011 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 178 Catchwords: Personal injury. Non-delegable duty of school for skiing lessons by another party. Legislation Cited: Trade Practices Act 1974 Civil Liability Act 2002 Cases Cited: Commonwealth v Introvigne (1982) 150 CLR 258 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Galea v Bagtrans Pty Ltd [2010] NSWCA 350 Mason v Demasi [2009] NSWCA 227 Penrith City Council v Parks [2004] NSWCA 201 Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 Category: Principal judgment Parties: James Anthony Harris (Plaintiff) Trustees of the Roman Catholic Church for the Archdiocese of Sydney (First Defendant) Perisher Blue Pty Limited (Second Defendant) Representation: M Maxwell and P Lott (Plaintiff) J Keesing (First Defendant) P Biggins (Second Defendant) Brydens Law Office (Plaintiff) Makinson & D'Apice (First Defendant) Dibbs Barker Lawyers (Second Defendant) File Number(s): 2009/00336355

Judgment 1The plaintiff is a part-time bartender. He would rather be a plumber. The reason he is not a plumber is because he injured his back on 29 July 2006. He was then a school student on an excursion to the New South Wales snowfields. The injury occurred during a beginners' lesson. The plaintiff says that the defendants are responsible for his injury. Initially he alleged they were negligent, in breach of contract and in breach of the Trade Practices Act 1974 ("the TPA"). 2The latter two causes of action were abandoned during the hearing. The claim thus falls entirely within the Civil Liability Act 2002 ("the CLA"). Another important concession occurred on the final day of evidence (31 October 2011). The plaintiff said his allegations against the first defendant were derived from its non-delegable liability for the negligence of the second defendant. All allegations of primary negligence against the first defendant were abandoned. 3The defendants accept that at the relevant time they owed the plaintiff a duty of care. They deny there was any breach of the duty and also rely on certain sections of the CLA to extinguish the duty. The second defendant also said the proceedings against it should be dismissed because they were commenced outside the relevant limitation period. This 'defence' was abandoned in final submissions. 4The first defendant has a cross-claim against the second defendant seeking full indemnity, or alternatively a contribution, in respect of any damages for which it is found liable to the plaintiff. 5The plaintiff originally sought damages under the following heads: non-economic loss, past and future economic loss, past and future medical expenses and past and future domestic assistance. The claim for past domestic assistance was abandoned when it became apparent that thresholds posed by the CLA would not be met. The claim for future care was abandoned in final submissions. Past medical expenses were agreed. 6The first defendant, for present purposes, is the school that the plaintiff attended from Years 7 to 10. It is called Penshurst Marist Brothers School, ("PMBS"). The second defendant is the operator of a ski resort located at Perisher in the Snowy Mountains. The second defendant's activities include the provision of skiing lessons.