Australia: Frisbo Holdings v Austin: Failed Recovery Proceeding

Last Updated: 18 June 2010
Article by Ashleigh Martin

Frisbo Holdings v Austin Australia [2010] NSWSC155

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.

Recovery proceeding

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 2610.10-1893.

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 [1999] 198 CLR 180 and Woolcock Street Investments Pty Limited v CDG Pty Limited (2004) 216 CLR 515.

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 friction.


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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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