Samahar Miski v Penrith Whitewater Stadium Ltd [2018] NSWDC 21

District Court New South Wales

Medium Neutral Citation: Samahar Miski v Penrith Whitewater Stadium Ltd [2018] NSWDC 21 Hearing dates: 29 January 2018 – 1 February 2018 Date of orders: 20 February 2018 Decision date: 20 February 2018 Jurisdiction: Civil Before: Judge D. Russell Decision: (1) Judgment for the defendant. (2) Order the plaintiff to pay the defendant's costs. Catchwords: TORTS – negligence – whitewater rafting – fall from raft – whether there was a failure to take reasonable precautions TORTS – negligence – obvious risks of dangerous recreational activity – s 5L Civil Liability Act 2002 TORTS – negligence – materialisation of inherent risk – s 5I Civil Liability Act 2002 Legislation Cited: Australian Competition and Consumer Act (Cth) Civil Liability Act 2002 (NSW) Cases Cited: Motorcycling Events Group Pty Limited v Kelly [2013] NSWCA 361 at [150] Wyong Shire Council v Vairy [2004] NSWCA 247 Prast v Town of Cottesloe (2000) 22 WAR 474 Rogers v Whitaker (1992) 175 CLR 479 Category: Principal judgment Parties: Samahar Miski (plaintiff) Penrith Whitewater Stadium Ltd (defendant) Representation: Counsel: L. Robison (plaintiff) D. Lloyd (defendant)

Solicitors: John Stonham & Co (plaintiff) McCulloch & Buggy (defendant) File Number(s): 2014/332159

Judgment

INTRODUCTION 1. On 12 November 2011 the plaintiff went with a group of friends to the Penrith Whitewater Stadium. There she participated in the activity of whitewater rafting. The plaintiff fell out of her raft and into the water. She floated downstream from the rapids to the calm water at the foot of the course. Somewhere between falling out of the raft and attempting to stand for the first time on dry land she fractured her right ankle. 2. By a Statement of Claim filed on 11 November 2014 the plaintiff sued the defendant which was the occupier and operator of Penrith Whitewater Stadium. The pleading sought damages for common law negligence and for breach of the Australian Competition and Consumer Act (Cth) (the ACC Act). 3. The Statement of Claim alleged the following particulars, common to the negligence claim and the claim under the ACC Act: "(a) Failure to supply services, the rafting activity, with due skill and care; (b) Failure to take any or adequate precautions for the safety of the plaintiff to avoid exposing her to injury which could be avoided by reasonable care; (c) Failure to give a proper instructional presentation of the rafting activity and associated risk of participation; (d) Failure to warn adequately at all the plaintiff as to the dangers associated with the rafting activity; (e) Failure to employ competent staff; (f) Failure to identify and observe the plaintiff was in a position of peril in the circumstances and take steps accordingly; (g) Failure to utilise rope lines to assist the plaintiff; (h) Failure to activate the Emergency Stop Button." 1. By its Defence the defendant denied negligence and denied a breach of the ACC Act. The defendant relied upon provisions in the Civil Liability Act 2002 (NSW) (the CL Act). Not all of the defences pleaded in the Defence were ultimately relied upon. 2. The plaintiff gave evidence herself, and called one of her friends, who was in the same raft. There was also expert evidence. The defendant called evidence from its senior activities instructor, the trip leader on the day of the accident and the guide who was in the raft in which the plaintiff and her friend were passengers. 3. Key issues in the case were: the instructions given to the plaintiff before she commenced rafting; the risk warning given to the plaintiff before she commenced rafting; the steps taken to observe and retrieve patrons who fell from rafts into the water; and the utility of activating the Emergency Stop Button. I will summarise the evidence of each witness on liability and then make factual findings.