• Candan Koyuncu

Plaintiff fails to establish damage: Splash Waterpark Pty Ltd v Tim Schnitzerling [2021] NSWDC 62

On 15 March 2021 Judge Russell SC handed down a decision in the above matter in which we acted for the successful defendant (on instructions from his insurer).

The case concerned the duty of care and foreseeability of harm when a yacht dragged anchor and met an inflatable water park after a predicted strong southerly change in winds. The case also concerned damages, and whether the water park suffered any damage. In this regard the Plaintiff was claiming consequential economic loss, and the Plaintiff failed to call evidence to establish damage by way of repair costs or loss of profits.

The plaintiff served mostly inadmissible evidence and after the defendant's objections to the evidence were determined, was left with no evidence to prove economic loss. The plaintiff also failed to call evidence to prove the waterpark had been damaged by any contact with the yacht. Therefore, despite His Honour's finding that the defendant breached his duty of care by not resetting the anchor earlier in the evening (given that he knew of the expected change in the wind), the plaintiff failed for not calling any evidence to establish that it suffered any damage. The plaintiff has been ordered to pay our client's costs.

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