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.

1
Gharibian v Propix Pty Ltd (2007) NSWCA 151

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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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• 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