Frisbo Holdings v Austin Australia 
The Supreme Court of NSW has held that the defendant to a
personal injury claim relating to a poolside accident which settled
for $1.5 million could not recover any compensation from the
designer and builder.
Patrick Ryan was 16 years old in January 1997 when he was
injured whilst visiting a hotel in Bankstown, New South Wales as a
softball player with Queensland Softball. Ryan and the other
players were using the spa and pool at the hotel. The cause of his
injury was not clear. It happened after he exited the spa. He was
found unconscious in the pool. He was rendered tetraplegic.
A claim was made against the owners of the hotel and Queensland
Softball, alleging Ryan slipped when exiting the spa.
His claim was settled in June 2005 by the insurer of the owners
of the hotel and Queensland Softball, with the hotel's insurer
contributing $1.5 million to the settlement.
Court proceedings to recover the $1.5 million contributed to the
settlement was commenced in May 2006 against Austin Australia Pty
Limited as the head contractor in the construction of the hotel and
the designer and draftsman of drawings for the construction of the
pool and spa, and Premier Pools Pty Limited as the builder of the
pool and spa.
It was alleged that Austin Australia and Premier Pools each owed
Ryan a duty of care to ensure the pool area was constructed free of
risk of injury and that this duty was breached by failing to
include a handrail and steps for safe access into and out of the
spa. It was argued that Ryan would have used a handrail and steps
had they been available and he would have been assisted by a
designated entry / exit point as called for by Australian Standard
In addition to claiming negligence against Austin Australia and
Premier Pools as joint tortfeasors, a claim was also made for pure
economic loss based upon principles set out in Perre v Apand
Pty Limited  198 CLR 180 and Woolcock Street
Investments Pty Limited v CDG Pty Limited (2004) 216 CLR
Austin Australia and Premier Pools argued that Ryan would not
have used the handrail even if it had been installed. They pointed
out that the Australian standard did not reflect common practice at
the time. They also argued there had not been any previous
accidents and, given Ryan's fitness at the time, he was
unlikely to have used the step and handrail in any event. Finally,
the results of slip tests produced an acceptable coefficient of
His Honour Justice Hislop, accepted the arguments that Ryan
would not have used the handrail or steps due to the large number
of people in the spa and the inconvenience this would have caused.
He felt the acts or omissions of Austin Australia and Premier Pools
would have made no difference to Ryan's course of action and
that Ryan's injuries were not caused by or materially
contributed to by the failure to provide steps or a handrail. Given
that the owners of the hotel had eight years to assess the adequacy
and safety of the design and construction of the spa and pool, and
had the work assessed for defects shortly after construction,
Hislop J considered that they were not relevantly
'vulnerable' and therefore the claims for contribution and
for pure economic loss were not maintainable.
Hislop J also found that it was not established on the evidence,
that the owners of the Hotel were liable to Ryan.
Judgment was given for Austin Australia and Premier Pools.
It is always preferable to have all relevant parties joined to a
court proceeding and participate in any settlement negotiations.
This case highlights the risks involved with settling a claim and
expecting to recover a contribution from another party. A necessary
element to any recovery claim against a joint tortfeasor which must
be proved is that the party seeking recovery owed a duty of care to
the injured plaintiff which was breached and which was causative of
the injury or loss suffered.
This case also demonstrates that mere noncompliance with the
relevant Australian standard does not mean a claim will succeed. It
must also be proved that the non-compliance was causally linked to
the injury or loss. The spa did not have a handrail or steps.
However, it was held that Ryan, who was a young and able
individual, was not likely to have used any handrail or steps, if
present. If an older or less athletic plaintiff had slipped then it
may have been a different result.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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