Part 2 of the Civil Liability Act 2002 (NSW), which limits damages, is directly inconsistent with s 74(1) of the Trade Practices Act 1974 (Cth) and invalid to the extent of the inconsistency under s 109 of the Constitution, because s 74(1) confers a right to 'full contractual liability' undiminished by State legislation. Ski lift ticket contracts are contracts for the supply of 'recreational services' under s 68B(2) of the Trade Practices Act. An exclusion clause that extends to liability for property damage (not just death or personal injury) does not satisfy s 68B(1)(d) and is void in its entirety under s 68, not merely to the extent of the excess. On causation, a plaintiff must establish that the specific breach (not merely the underlying hazardous situation) was a necessary condition of the harm; where the evidence does not permit a finding as to when the plaintiff first became aware of the danger, the causal link between the breach and the harm may not be established.
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