Lets Go Adventures Pty Ltd v Barrett

[2017] NSWCA 243

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Breach of duty
4. › Standard of care
5. › Whether defendant ought to have known plaintiff required oxygen therapy
6. › Whether defendant required to countermand plaintiff's own assessment of his condition
7. › Civil Liability Act 2002 (NSW), s 5D
1. Torts
2. › Negligence
3. › Causation
4. › Factual causation
5. › Whether failure to provide oxygen therapy was necessary condition of decompression illness
6. › Whether plaintiff proved on balance of probabilities that oxygen therapy would have prevented or minimised illness
7. › Civil Liability Act 2002 (NSW), s 5D(1)(a)
1. Consumer Law
2. › Australian Consumer Law
3. › Guarantee as to due care and skill
4. › Services rendered in trade or commerce
5. › Whether breach of statutory guarantee established
6. › Competition and Consumer Act 2010 (Cth), Sch 2, s 60
1. Practice and Procedure
2. › Cross-examination
3. › Obligations of counsel to conduct cross-examination in fair and civil manner
4. › Obligations of trial judge to ensure fair process
5. › Whether adverse credibility findings vitiated by unfair cross-examination
6. › Whether trial judge misused advantage of seeing and hearing witnesses

Quick Take

A trial judge's failure to intervene to prevent unfair, confronting and baseless cross-examination can taint credibility findings and render them unsound on appeal. Where a plaintiff is the most experienced person present and assures others he is unwell, the standard of care does not require the defendant to countermand the plaintiff's own assessment. A plaintiff who fails to seek timely recompression treatment for suspected decompression illness fails to mitigate loss. Expert evidence based on unproved assumptions has no forensic value even if the expert is not directly challenged, provided the assumptions are challenged.