During the ride, Mr Stubbs, the instructor who was leading the group, accelerated to a speed causing others in the group behind him to accelerate in order to keep up.
In relation to s 5N, it was accepted that the contract was entered into when the appellant’s mother booked and paid for the activity. In relation to s 5L, the activity was held not to be a ‘dangerous recreational activity’. The court found that there are significant limitations preventing a supplier from seeking to contractually exclude a consumer’s rights under the ACL. Are these correct and if I include this in full in text, what would its footnote contain? The court also found that contractual waivers are void under s 64 of the ACL so far as they seek to exclude a consumer’s rights. On the day of the quad bike riding and prior to the ride, the appellant’s mother signed a form stating that she acknowledged that quad biking is a dangerous recreational activity and that the respondents are not liable for any injury or loss. Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 Court of Appeal of New South Wales Macfarlan & Simpson JJA; J C Campbell AJA Negligence - consumer law - appellant injured when she fell off quad bike she was riding at respondents’ recreational facility - appellant sued respondents for negligence and non- The appellant’s mother rang the facility on 20 May 2011 to book and pay for the activity. Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 (29 July 2015) Facts. Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 (29 July 2015). The Court of Appeal held that the CCA does not exclude recovery of non-economic loss under the CLA, simply because the former is Commonwealth legislation and the latter is state-based. In respect of the defence under section 5N of the CLA, the primary judge found that the respondent’s warning sign did not exclude the respondent’s liability because it was shown to the appellant after the contract was formed. Each was unsuccessful. In the following alert, Partner Robert Tidbury discusses the recent decision of Alameddine v Glenworth Valley Horse Riding Pty Ltd (2015) NSWCA 219 in which the New South Wales Court of Appeal revisited the law surrounding the operation of exclusion of liability clauses in respect of persons injured whilst participating in potentially dangerous activities at recreational facilities. The key factual finding made by the first instance judge was that the instructor sped up on the way back to the finishing point causing the plaintiff, in her attempt to keep up with him, to lose control and crash.
The respondent’s defence under s 5L of the CLA was rejected. There was (contested) evidence that the group had been instructed to “keep up” with the pace set by instructors, whilst also maintaining a set distance between riders. Author: Emma Sheehan Judgement Date: 29th July, 2015 Citation: Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 Jurisdiction: New South Wales Court of Appeal [1] In brief When determining whether a recreational activity is “dangerous” the type of activity and how the injury occurred are relevant considerations. Power up your legal research with modern workflow tools, AI conceptual search and premium content sets that leverage Lexology's archive of 900,000+ articles contributed by the world's leading law firms. In this case the Court of Appeal was called on to determine whether quad bike riding was a dangerous recreational activity and determine the obvious risks of that activity and the defences available in recreational activity personal Alameddine v Glenworth Valley Horse Riding Pty Ltd • A sub-issue in this case was when the contract was made. Please contact [email protected]. Therefore, His Honour held that this quad bike riding activity would not constitute a ‘dangerous recreational activity’. Further, even if Rocket was negligent, this was a dangerous recreational activity. This decision will undoubtedly have an impact on future claims. I would highly recommend Lexology to colleagues. Become your target audience’s go-to resource for today’s hottest topics. Questions? The plaintiff’s mother organised and paid […] Unlike the situation in Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219; (2015) 324 ALR 355, Carter was 15 and not inexperienced in outdoor activities. This resulted in the appellant accelerating her speed, losing control of the bike, and falling off. The respondents argued three defences under division 5 of the CLA; dangerous recreation activity (section 5L) inherent risk (section 5M), and contractual waiver of liability (section 5N). The defence under s 5M was rejected on similar ground, namely that the risk which materialised, being the instructor accelerating his speed, was not inherent in the activity as described above. The respondent argued that the accident was due to. In this instance, damages under the CLA were more favourable to the appellant. "Lexology is a very relevant and interesting resource for South African in-house lawyers. The appellant’s mother rang the facility on 20 May 2011 to book and pay for the activity. However, His Honour found that the application form signed on behalf of the appellant on the day of the activity, included a warning of the risk, and therefore did form part of the contract and also excluded the respondent’s liability. Claims under the ACL for breach of consumer guarantees will deprive a defendant from relying upon a range of statutory defences under the CLA, including sections 5M and 5N. • The two options were when the appellant’s mother booked and paid for the activity or when they attended the facility and signed the form. Understand your clients’ strategies and the most pressing issues they are facing. Section 139A of the. Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 Macfarlan JA, Simpson JA, J C Campbell AJA 27 July 2015 For more information, go to: Recreational Accidents ( 1 votes, average: 5.00 out of 5) The court’s decision has significant implications for claims for personal injuries brought pursuant to both the CLA and ACL. The court agreed with the findings of the trial judge that the respondent was negligent as a result of Mr Stubbs having accelerated, causing the riders behind him to also accelerate, and resulting directly in the plaintiff’s accident. On appeal, the respondent conceded that the infant was a consumer for the purposes of the ACL, despite not having entered into the contract for services. It was held that the contract was formed the day before the quad bike riding when the appellant’s mother booked and paid for the activity. The primary judge found that the appellant was not a consumer for the purposes of these sections and therefore the ACL claim failed. When is a real estate agent really entitled to commission? In relation to ss 60 and 61 of the ACL, the respondent accepted on appeal that the appellant was a consumer and that in circumstances where a finding of negligence had been made, the guarantee of service being supplied with due care and skill was not complied with. The appellant was therefore entitled to choose whether to accept non- economic loss damages awarded under section 16 of the CLA or alternatively general damages pursuant to the CCA. Hear directly from leading legal experts this month. The Court also held that the warnings provided to the Appellant did not extend to the risk that materialised, and that the risk is not one ‘of the activity’ described such that a defence under s 5M did not protect the respondents. The case considers, among other things, the effective use of exclusion clauses in contracts for the provision of recreational activities. Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 Background Alissa Alameddie, the plaintiff, commenced proceedings against the defendant, Glenworth Valley Horse Riding (Glenworth) in relation to an injury she suffered while participating in a quad bike trail ride at the defendant’s premises on 21 May 2011. If you would like to learn how Lexology can drive your content marketing strategy forward, please email [email protected]. The primary judge found that Mr Stubbs accelerated on the quad bike causing the appellant and other riders behind him to also increase their speed resulting in the appellant falling off the bike. It was contested whether general damages should be assessed under the CLA or the CCA. Keep a step ahead of your key competitors and benchmark against them. Alameddine v Glenworth Valley Horse Riding Pty Ltd • The appellant, an 11 year old girl, was injured when she fell off her quad bike at the respondents’ recreational facility at Glenworth Valley in New South Wales. The newsfeeds are a good measure of a firm's expertise and offer an interesting insight into recent legal developments. We would like to show you a description here but the site won’t allow us. Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 (29 July 2015) Facts † On 21 May 2011, the appellant (who was almost 12 years old) went quad bike riding at the respondent’s recreational facility at Glenworth Valley. NSW Court of Appeal in Alameddine v Glenworth Valley Horse Riding Pty Limited. The court accepted that s 5L was an available defence, as it does not expressly purport to exclude a defendant’s liability. In the 2015 case of Alameddine v Glenworth Valley Horse Riding Pty Ltd (hereby Glenworth), an employee of Glenworth led Ms Alameddine at high speeds during a quad-biking activity. The next generation search tool for finding the right lawyer for you. Am I able to use the neutral citation of Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219, or should I use Alameddine v Glenworth Valley Horse Riding Pty Ltd (2015) 324 ALR 355? In the District Court, Armitage DCJ directed that judgment be entered in favour of the respondents. Therefore, the contractual waiver signed the day of the activity was executed after the contract was formed and could not act as a waiver. ", © Copyright 2006 - 2020 Law Business Research.
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