Ashurst First Year Moot 2018 Sally Sendage v Crag Climbing Pty Ltd and Bethany Bollard Problem 1
IN THE COURT OF APPEAL ON APPEAL FROM THE DISTRICT COURT BETWEEN SALLY SENDAGE AND CRAG CLIMBING PTY LTD BETHANY BOLLARD (APPELLANT) (FIRST RESPONDENT) (SECOND RESPONDENT) 1 Sally Sendage is a resident of Brisbane, Queensland who worked full-time as a Store Manager at a local sports store. Sally had been working at the store for three years, having been promoted to Store Manager in early 2017. Sally enjoyed her job but she often wished she could spend more time outdoors. Sally was a keen sportswoman, having represented Australia in hockey and tennis. In July 2016 she began rock climbing once a week with a group of friends at a facility called 'City Climbing'. 2 Crag Climbing Co Pty Ltd ( Crag Climbing ) runs commercial rock climbing trips with school groups and adults throughout South East Queensland, operates an online retail store selling specialist rock climbing equipment and provides training programs for keen climbers seeking to develop their skills. 3 On 23 June 2017, Sally Sendage viewed an advertisement on her Facebook newsfeed published by Crag Climbing. The advertisement read: START YOUR JOURNEY TO BECOMING AN ACCREDITED CLIMBING INSTRUCTOR. Sign up now to go from bad to trad in six short months for just $1,200. Learn one-on-one from highly skilled climbers at sessions tailored to meet your schedule. Get active and get outdoors! Sessions start on July 1. * 2
4 The words "*Subject to terms and conditions" appeared in small font at the bottom of the advertisement. 5 On 25 June 2017, after a particularly busy day at the store, Sally recalled the advertisement and googled Crag Climbing instructor training'. Sally followed the links on the website and added the $1,200 Climbing Instructor Tutorial Program 6 months to her virtual basket. At the virtual checkout, a pop up read "By processing this request, you enter into a contractual agreement with Crag Climbing Pty Ltd and are bound by the terms available 'here'". A hyperlink to the terms appeared in the pop up. The terms and conditions included: 6 Term 8. Climbing sessions will be held three times per week from one (1) July 2017 to 31 December 2017 at City Climbing. Term 9. Outdoor sessions will be conducted at the discretion of the instructor. A total of five (5) outdoor training sessions will be held throughout the training program. Term 10. A maximum of five (5) students per booking. Term 11. Session times are subject to change. Term 12. Students may be required to undertake further study through the Australian Climbing Instructors Association following completion of the Training Course. Term 13. Instalments of $400.00 are due on 1 July 2017, 1 September 2017 and 1 November 2017.... 7 Sally opened the link but did not read the terms. Sally purchased the training course and received an automatic email advising of the following: climbing sessions will be held at City Climbing from 6:00pm to 8:00pm every Monday, Wednesday and Saturday 3
students will be advised of times and locations for outdoor sessions a maximum of 5 students per instructor will be allowed in each session instalments of $400.00 were due on the first day of every second month of the program. 8 City Climbing is a local indoor climbing facility, unaffiliated with Crag Climbing. City Climbing facilities include several top rope climbing stations, auto belay stations and lead climbing stations. The lead climbing stations are often used by climbers training for outdoor climbing. Crag Climbing runs a number of training courses using City Climbing's facilities. 9 Sally was a prompt and regular attendee at the training sessions. Sally missed only one session during the first three months of training. However, Sally grew concerned at the rate of progress she was making. In particular, she felt as though she was not learning any useful rope skills that she would require as an instructor. Sally had also voiced concerns about the size of the class, having noticed that on some occasions one instructor was training up to nine students. On multiple occasions, the instructor employed by Crag Climbing, Bethany Bollard, said that the class size started larger because a number of students would ultimately drop out and not all students attend outdoor sessions. However, the class size did not reduce over time. 10 On 20 October 2017, Sally resigned from her job as Store Manager. Sally wanted to spend more time rock climbing and pursue job opportunities as an instructor. 11 In an attempt to receive more one-on-one training, Sally stayed behind after each session to chat to Bethany Bollard. On 25 October 2017, Sally was discussing outdoor climbing with Bethany. Bethany said she would be heading to Mt Ngungun on the coming Saturday for an outdoor climbing session. Bethany asked if Sally would like to come. Sally, enthusiastic to get some experience outdoors, agreed. Bethany told Sally she would be taking a car load full of people and should meet her at City Climbing at 6:30am. 4
12 On 28 October 2017, Sally met Bethany at City Climbing. Bethany was wearing a shirt with the Crag Climbing logo and '2010 Boulderfest' in large text. Sally was surprised to see only one or two other faces she recognised from the course among the group heading to Mt Ngungun. 13 South East Queensland had experienced heavy storms over the previous two days. When Sally asked about the conditions, Bethany dismissed this, saying "you will have to learn to adapt to all conditions, why not start now". 14 While climbing on a particularly slippery patch of rock at Mt Ngungun, Sally lost her balance and fell. Sally was being belayed by a close friend of Bethany's who was also an experienced climber. Due to a large amount of slack in the rope Sally fell onto a ledge two metres below. Sally felt a sharp pain through her leg. 15 Bethany assisted her friend to lower Sally following the fall and she rested at the bottom of the cliff for two hours while the remaining members of the group climbed the cliff. During this time, Sally could see visible swelling around her knee. 16 On 29 October 2017, the swelling around Sally's knee had not reduced. Sally attended a doctor who told her that she had torn her anterior cruciate ligament and she could not participate in strenuous physical activity for six months. 17 On 31 October 2017, Sally contacted Crag Climbing to discuss her options given she would be unable to participate in the remainder of the course. During that conversation, Sally learned that the course would not provide her with a formal accreditation and a further course would have to be undertaken through the Australian Climbing Instructors Association. Sally was shocked as she had believed that she would be an accredited instructor at the conclusion of the course. Sally did not pay the final instalment of $400.00 due on 1 November 2017. 5
18 Following a series of exchanges with Crag Climbing, Sally became increasingly frustrated. Sally commenced proceedings in the District Court in Brisbane seeking damages for misleading or deceptive conduct, breach of contract and negligence. 19 At first instance, Wright DCJ held that Crag Climbing's conduct was not misleading or deceptive as the terms which were readily available expressly set out the requirement that further coursework be undertaken. On that basis, Wright DCJ held that no damages for loss of income under s 236 of the ACL were available. Further, Wright DCJ held that while there was a breach of Term 10 of the Contract, Sally had elected to continue performing the contract by continuing to attend the sessions. In any event, Term 10 was not an essential term and, even if Term 10 could be categorised as an intermediate term, there was no substantial breach. Judge Wright found that damages for failure to pay the remaining instalments were available. 20 Judge Wright found that Crag Climbing and Bethany Bollard were liable in negligence for a failure to exercise reasonable care at Mt Ngungun. 21 The Appellant's Notice of Appeal contains the following grounds: a. Judge Wright erred in finding that the advertisement was not misleading or deceptive under the ACL. Judge Wright erred in finding that damages for loss of income under s 236 of the ACL were not available. b. Judge Wright erred in finding that Term 10 was not an essential term and that, if the term were an intermediate term, there would be no substantial breach. Judge Wright further erred in finding that damages were available for a failure to pay the remaining instalments. 22 The Respondents cross-appeal on the following ground: a. Judge Wright erred in finding that Crag Climbing and Bethany Bollard were liable in negligence. In particular, Wright DCJ erred in finding that: i. Bethany Bollard was acting in the course of her employment with Crag Climbing when the incident occurred. 6
ii. Bethany Bollard and Crag Climbing breached their duty of care as Bethany failed to ensure that the conditions were suitable for climbing and proper safety measures were in place. Notes The parties have agreed to hear the issue of liability separately to the issue of quantum of damages. 1 The parties accept that the exemptions relating to liability under the Civil Liability Act 2003 (Qld) do not apply. The parties accept that the terms at paragraph 6 have been incorporated into the Contract. Cases and Materials Competition and Consumer Act 2010 (Cth) Schedule 2, Australian Consumer Law, s 18, s 2, s 236. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Australian Competition and Consumer Commission v Telstra Corp Ltd (2007) 244 ALR 470 Typing Centre of NSW Pty Ltd v Northern Business College Ltd Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2007) 233 CLR 115. Tropical Traders Ltd v Goonan (1964) 111 CLR 41 Civil Liability Act 2003 (Qld) s9 1 As such, no submissions should be made on quantum, although a general understanding of the damages flowing from each claim may be necessary. 7