Case Study For Law 101

Dung Viet Nguyen 3222007 •

Who was the original plaintiff

The original plaintiff was Mrs Gharibian1 •

Summarize the key facts that were relevant to the decision

Mrs Gharibian attended the Park with her husband, son and daughter on an overcast day. One of the more popular rides was a stainless steel toboggan run, for which the defendant supplied toboggans. The toboggans ran on hard plastic slides on the steel tracks and had a hand operated brake lever. The brake would not operate if the toboggan run was wet as moisture would cause "aquaplaning" and would prevent the toboggan having any friction over the toboggan run. The defendant recognised this risk. Signs indicated that the toboggan track would close in the event of rain. While Mrs Gharibian proceeded down the toboggan ride it started to rain. She alleges she immediately pulled the lever and the toboggan did not slow or stop. The toboggan's speed increased and collided with a bag at the end of the run sustaining injury. Mrs Gharibian's claim for damages was based on negligence, a breach of an implied term of their contract and breaches of the Trade Practices Act. •

Briefly explain the error of law that led to the appeal being allowed

A finding that “the services were reasonably fit for the purpose for which they were supplied” is not a finding that is required by s 74 to be made. The relevant finding under s 74 concerns whether materials, supplied in connection with the supply of services, were reasonably fit for the purpose. The judge did not address the correct issue because the two findings differ conceptually.

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Gharibian v Propix Pty Ltd (2007) NSWCA 151

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Dung Viet Nguyen 3222007 •

Outline the reason for the judge’s decision in your own words

The trial judge found there was no evidence that the defendant had had sufficient warning of the sudden downpour to allow it time to prevent the plaintiff joining the ride. Before Ms Gharibian got into the toboggan, it was not raining and she did not think it would rain. So when she was on the toboggan on the haft way down the run, the rain started. As the track became wet, after that she pulled the break lever immediately, but the breaks didn’t work, the toboggan still keep going even faster and faster. Eventually, she struck the airbag and was thrown out of the toboggan. Therefore, that was enough to cause the brakes to fail. Although the defendant had led evidence that there had been no other previous accidents, this was not relevant as to the fitness of the toboggans and the track. Justice Ipp noted in this situation recreational equipment intended for general use by the public should not depend on the ability of members of the public to react as soon as they detect rain by operating a brake within a few seconds in order to avoid an accident. It was noted regard must be had to the fact that a number of potential users would be inexperienced, react slowly and/or panic. The appeal was therefore upheld due to a breach of Section 74. However, Justice Ipp believed there was no negligence on the part of the defendant. Justice Ipp noted the defendant had put in place a series of safety procedures in an attempt to prevent harm coming to users of the toboggan track should it rain, his Honour observed the measures adopted say nothing about the fitness of the structure of the run and the toboggans for the purpose for which they were supplied.

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Dung Viet Nguyen 3222007 •

Outline the steps required to establish an acton under section 74 of the Trade Practises Act 1974 (Cth), according to Justice Ipp

Justice Ipp noted when considering a Section 74 cause of action, the first question to be determined was whether there was a contract between the plaintiff and the defendant. The second was whether materials were supplied in connection with those services and finally whether the materials were reasonably fit for the purpose for which they were supplied. •

In his decision, Justice Ipp refers to a certificate under the Suitor’ Fund Act 1951 (NSW). For this question, you will need to locate the Suitor’ Fund Act 1951 (NSW)

(a) What is the purpose of the certificate? The Suitors' Fund Act 19512 provides for the establishment and maintenance of a fund to mitigate costs incurred in court proceedings through no fault of the parties, in certain circumstances. These circumstances are set out in sections 6, 6A and 6B of the Act. (b) What is the maximum amount to which the respondent in this case would be entitled? The combined costs paid to the appellant and respondent cannot exceed the applicable limit (usually $10,000). Bibliography Gharibian v Propix Pty Ltd (2007) NSWCA 151 Lawlink NSW, The Suitors' Fund Act (1951) <

http://www.lawlink.nsw.gov.au/lawlink/Corporate/ll_agdinfo.nsf/pages/community_rela tions_suitors_fund> at 27 March 200 2

Lawlink NSW, The Suitors' Fund Act (1951) < http://www.lawlink.nsw.gov.au/lawlink/Corporate/ll_agdinfo.nsf/pages/community_relations_suitors_fun d> at 27 March 2008

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