Australia: Recovery Proceedings: Requirements for Successful Recovery Under Section 5(1)c of the Law Reform (Miscellaneous Provisions) Act 1946

Case Notes
Last Updated: 18 March 2010
Article by Heidi Nolan

Frisbo Holdings v Austin Australia and Ors [2010] NSWSC 155

Supreme Court of New South Wales1

In Brief

  • Where recovery proceedings are commenced under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946, the plaintiff must prove that a defendant has in fact breached a duty of care to the original claimant in order for that claim to be successful.
  • An argument as to causation can only succeed if the initial injury or damage was caused or materially contributed to by the acts or omissions of the defendants to the recovery proceedings.
  • Additionally, a plaintiff must provide evidence that it breached a duty of care owed to an original claimant at the first instance before any prospects for recovery can be considered.
  • Section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act provides:

Where damage is suffered by any person as a result of a tort (whether a crime or not) ... any tortfeasor liable in respect of that damage may recovercontribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise...".


Patrick Ryan, the original claimant, was injured in 1997 when he hit his head as he entered a swimming pool from a spa at hotel premises when he was on a sports tour as part of an under 16 boys softball team. The actual mode of Mr Ryan's entry to the pool is not known, as none of the evidence could establish whether he slipped, fell, dived or slid into the pool. Mr Ryan became a tetraplegic as a result of this incident. Mr Ryan issued proceedings against both the Queensland Softball Association as well as the owners of the hotel, Frisbo Holdings Pty Limited, Aymoy Pty Limited and Arvant Holdings Pty Limited (plaintiffs) at which the pool was situated.

Mr Ryan settled with both defendants to the original action. The hotel owners contributed $1.5 million towards settlement. They then commenced recovery proceedings to recover this amount plus costs as the three plaintiffs to the present action. The plaintiffs commenced proceedings against both the builder of the hotel at the time of its construction, as well as the pool company which constructed the swimming pool at the plaintiffs' premises. The construction of the pool and surrounding hotel occurred in 1989. This was some 8 years before Mr Ryan's accident.

Evidence on the day of Mr Ryan's accident was predominantly required to be taken from contemporaneous statements to establish the events that occurred on that day.

Supreme Court Proceedings

In May 2006, the plaintiffs initiated proceedings in the Supreme Court of New South Wales against the defendants for recovery of their contribution sum. The plaintiffs alleged that it was the design and construction of the pool and spa which ultimately led to Mr Ryan's accident. The plaintiffs also alleged that the defendants owed Mr Ryan a duty of care to ensure the premises they constructed were free of risk of injury to persons.

The first defendant, Austin Australia Pty Limited (Austin), was sued as the head contractor for the construction of the hotel, which included the design and preparations of drawings for construction of the pool and spa. The second defendant, Premier Pools Pty Limited (Premier), was sued as the builder of that pool and spa.

The plaintiffs alleged that the defendants and the plaintiffs were joint tortfeasors for the purposes of the Law Reform (Miscellaneous Provisions) Act 1946 and that they were entitled to indemnity or contribution from the defendants and or each defendant owed them an independent duty of care and that duty had been breached.

A Cross Claim was issued by the first defendant, Austin, against Premier, the second defendant, for breach of contract between the defendants.

There was no issue between the parties as to the reasonableness of the actual settlement figure reached by the plaintiffs in the original action had there been liability owed to the plaintiff, however it was disputed by the defendants that the plaintiffs in fact ever owed any liability to Mr Ryan.

Mr Ryan gave evidence in the recovery proceedings. His evidence revealed that he remembered little of the accident, and he was not able to indicate how he came to enter the pool on the day of his accident. He did not remember more than putting one foot on the seat of the spa as he was going to get out. His evidence was that there were seven or eight other boys in the spa at the time, and that it was crowded, so that one boy was actually sitting on the bottom on the spa rather than on the seat. He did not remember slipping.

Witness statements taken immediately after Mr Ryan's accident were tendered, and these statements from various witnesses provided different versions of what Mr Ryan was doing immediately prior to entering the pool, however it was apparent from at least three of the witnesses at the time, that Mr Ryan was leaning forward looking into the pool, prior to entering. There was no suggestion that there was any mucking around by any of the boys present.

The issues as to the liability of the defendants in relation to the construction elements of the pool and spa were subject to a conclave of expert evidence, combining to reach a joint opinion on most of the issues.

It was agreed by the experts that specific Australian Standards applied to the design and construction of the pool and spa in question; that the absence of a handrail and steps into the spa breached the Australian Standard in that regard; that the absence of a handrail and steps into the spa however accorded with usual practice in the pool building industry at the time of construction; that the coefficient of friction of the tiles lining the spa accorded with the usual practice in the pool building industry; and also that the tiles lining the spa met the relevant Standard for coefficient of friction.

The plaintiffs alleged that the defendants owed a duty to take reasonable care for the safety of all classes of people who would use the pool within the hotel. They argued that without a handrail and steps, people may slip, trip or fall when entering or exiting the spa, particularly having regard to the height of the seat of the spa. They also argued that if there had been a designated entry/exit point with a handrail, Mr Ryan would have used this handrail and steps, and therefore if he did slip he would have been able to prevent himself from falling. The plaintiffs argued that for those reasons, if Mr Ryan had sued the defendants directly, the defendants would have been liable for the injuries sustained by Mr Ryan.

The defendants argued that not only did the absence of a handrail and steps into the spa conform with the usual practice in the pool building industry at the time of construction, but that there was no history of accidents within this pool or spa in the 8 years prior to Mr Ryan's accident, nor in the years since. Additionally it was argued that the Australian Standards of themselves are not legally binding, and are merely used to assist a court in determining what the appropriate standard of care is in each case.

The defendants submitted that the duty of care owed to Mr Ryan, who was a young, fit sportsman, needed only suit requirements for a person of that type, and the duty of care owed to him is not the same duty as that which might be required for an elderly person. The defendants argued that a young, fit sportsman like Mr Ryan would have had no difficulty exiting the spa without steps or a handrail, and therefore the absence of these did not lead to a breach of duty.

Hislop J accepted the defendants' submissions that reasonable care for Mr Ryan did not require the provision of steps or a handrail and that accordingly there was no breach of duty owed by the defendants to Mr Ryan in respect of his initial action. The evidence Mr Ryan gave during the course of the proceedings was ultimately to the effect that as the spa was crowded at the time, even if a handrail and steps had been in place, he was unlikely to have used them, as he would have still taken the most direct course out of the spa, which was to step up onto the step behind him. Mr Ryan indicated that with the amount of people in the spa, he was not likely to have pushed past the people to get to a handrail on the other side of the spa.

Hislop J accordingly indicated that even if the plaintiffs had established that the defendants were in breach of a duty to Mr Ryan, they did not prove that there was any causal relationship between absence of steps and a handrail to Mr Ryan's injury. In Hislop J's opinion, the evidence put forward in this case supported the defendants' arguments that the acts or omissions of the defendants would have made no difference to Mr Ryan's course of action and therefore they did not cause Mr Ryan's accident.

Hislop J in making this finding on causation, cited the High Court decision in Chappel v Hart2 where it was held that:

"...a defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action. Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injuries suffered. The inquiry as to what the plaintiff would have done if warned is necessarily hypothetical. But if the evidence suggests that the acts or omissions of the defendant would have made no difference to the plaintiff's course of action, the defendant has not caused the harm which the plaintiff has suffered".

Hislop J also dismissed the plaintiffs alternative arguments as to causation, which were a failure to construct a barrier between the spa and pool, and the failure to provide a safe and non slip surface, on the basis that the usual practice was complied with at the time, as well as other evidence which indicated that the tiling in the pool and spa area was probably changed between the time of construction in 1989, and Mr Ryan's accident in 1997 due to refurbishment of the pool area in 1995.

Ultimately, the plaintiffs in this case failed to identify that the defendants were liable for any damage suffered by Mr Ryan. The defendants could accordingly not be held liable under the Law Reform (Miscellaneous Provisions) Act, and so the plaintiffs' proceedings must fail. Hislop J also considered whether there was any breach of duty of care owed to Mr Ryan in the first instance by the plaintiffs. It was not questioned by anyone that there was a duty of care owed to Mr Ryan as a result of him being a visitor at the plaintiffs' premises. There was however an issue as to whether there was a breach of any duty owed to Mr Ryan and if such a duty was causative of the injury.

None of the evidence put forward in the present case indicated to Hislop J that the plaintiffs would ever have been liable to Mr Ryan in respect of any defect in the design of the spa. Hislop J also disregarded a notion that the plaintiffs breached their duty by failing to monitor the boys in the pool area, as all the evidence suggested that the boys had not been mucking around at the time.

Hislop J briefly addressed the plaintiffs' argument that the defendants were directly liable for economic loss suffered to the plaintiffs as a result of defects in the construction of the pool, however he found that as the plaintiffs had had eight years to assess the adequacy and safety of the defendants works, and had had the works assessed for defects litigation shortly after construction, he did not consider that they were in any way vulnerable as a result. In any event this was an unnecessary consideration to make as it had not been established by the plaintiffs that any defects in the pool design and construction were causally related to Mr Ryan's accident.

Hislop J accordingly awarded a verdict and judgment for the defendants, as well as a verdict and judgment for the second defendant, Premier Pools on the cross claim issued by Austin Australia, the first defendant.


A plaintiff to recovery proceedings, will only succeed in bringing a joint tortfeasor claim under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act, where it can establish that it itself owed a duty of care to the plaintiff, that that duty was breached, and that any such breach was causally related to the injury or damages suffered.

1 Hislop JM
2 (1998) 195 CLR 232 at [32]

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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