High Court of Australia

Insight Vacations Pty Ltd v Young [2011] HCA 16

243 CLR 149; 85 ALJR 629; 276 ALR 497

11 May 2011

Case Number: S273/2010

Before

French CJ, Gummow, Hayne, Kiefel, Bell JJ

Catchwords

Trade practices – Conditions and warranties in consumer transactions - Implied warranties - Limitation or preclusion of liability for breach of implied warranty - Section 74(1) of Trade Practices Act 1974 (Cth) ("TPA") provided that in every contract for supply by corporation of services there was an implied warranty that services will be rendered with due care and skill - Section 74(2A) of TPA provided that, where implied warranty breached and law of State was proper law of contract, that State law applied to limit or preclude liability for breach of implied warranty in same way as for breach of another term of contract - Section 5N(1) of Civil Liability Act 2002 (NSW) ("Civil Liability Act") provided that term of contract for supply of recreation services may exclude, restrict or modify liability for breach of implied warranty - Appellant and respondent entered contract for supply by appellant to respondent of tourism services in Europe - Proper law of contract was law of New South Wales - Contract contained clause exempting appellant from liability for claims arising from accident where passenger occupied motor coach seat fitted with safety belt if safety belt not being worn - While travelling by coach respondent left seat to retrieve item from overhead shelf - Coach braked suddenly causing injury to respondent - Respondent claimed damages for breach of implied warranty by appellant - Whether s 74(2A) of TPA picked up and applied State laws as surrogate federal laws - Whether s 74(2A) of TPA picked up and applied s 5N of Civil Liability Act - Whether s 5N a law that applies to limit or preclude liability for breach of contract.

Negligence – Civil Liability Act - Whether provision of transport services in the course of tourism constitutes "recreation services" for purposes of s 5N.

Statutes – Acts of parliament - Interpretation - Geographical limitation on legislative power of State parliament - Whether s 5N of Civil Liability Act subject to geographical limitation - Whether, if picked up by s 74(2A), s 5N applied to contract for supply of recreation services where supply occurred wholly outside New South Wales.

Contracts – General contractual principles - Construction and interpretation of particular contracts - Exemption from liability - Whether appellant could rely on exemption clause in contract as answer to respondent's claim.

Words and phrases – "applies to limit or preclude liability", "contract for the supply of recreation services", "geographical limitation", "recreational activity".

Civil Liability Act 2002 (NSW) – ss 5A, 5J, 5K, 5N.

Interpretation Act 1987 (NSW) – s 12(1)(b).

Trade Practices Act 1974 (Cth) – ss 68, 74(1), 74(2A).

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