The judgment opens with some obiter comments by Basten & Gleeson JJA which are of general interest in respect of section 60, section 61, services, the Fair Trading Act and the Good Samaritan provisions. Adamson J said that the matters raised by their Honours were not the subject of argument in this Court and did not require determination for the purposes of the appeal I would prefer not to express a view about them.
The plaintiff pleaded his claims primarily by reference to ss 60 and 61 of the Australian Consumer Law, wrongly identified as those sections in the Competition and Consumer Act 2010 (Cth). That pleading required that the plaintiff be a “consumer” as defined in s 3 of the Australian Consumer Law, and not, as pleaded, by reference to the definition in s 51ACA of the Competition and Consumer Act, dealing with industry codes. As limited attention was given to whether or not the plaintiff was a “consumer” acquiring services, pursuant to s 3(3) of the Australian Consumer Law, it would have been appropriate to refer to the presumption in s 3(10).
The primary basis of claim turned on s 60 of the Australian Consumer Law which provides as follows:
60 Guarantee as to due care and skill
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
Section 61 involves additional issues and relevantly provides:
61 Guarantees as to fitness for a particular purpose etc.
(a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;
there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.
(3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.
These provisions require careful attention to the “services” which were provided. The statement of claim identified them as “scuba diving” and stated that the services included “the provision of adequate and safe equipment and supervision during the provision of the services.” The failure to identify the services with precision caused difficulties in identifying what were relevant breaches of the s 60 guarantee and in demonstrating causation.
The defendant relied upon ss 5G and 5H of the Civil Liability Act 2002 (NSW) (obvious risk), s 5I (inherent risk), s 5L (dangerous recreational activity), s 5M (risk warning) and s 5N (waiver). In dealing with the relationship between the Australian Consumer Law and the Civil Liability Act, the Court was invited (an invitation which was accepted) to apply the principles identified by Meagher JA in Motorcycling Events Group Australia Pty Ltd v Kelly.  That was not entirely helpful. That case turned in part on the operation of s 74(2A) of the Trade Practices Act 1974 (Cth), as then in force, which was not expressed in the terms of a guarantee but in the terms of an implied warranty incorporated into the contract between the supplier and the consumer. That section has been replaced by s 275 of the Australian Consumer Law. Further, the application of State law also depended on the operation of s 68B of the Trade Practices Act, which has been replaced by s 139A of the Competition and Consumer Act. Ultimately, this case did not turn on any contractual exclusion of liability. Because s 74(2A) dealt with breaches of an implied warranty, rather than failure to comply with a guarantee, to the extent that it saved the operation of the Civil Liability Act, it was necessary to have regard to the specific terms of the relevant provisions of the Civil Liability Act with respect to a course of action based on a statutory guarantee, rather than a contractual warranty.
The plaintiff’s pleading assumed, no doubt correctly, that the standard set by the guarantee of “due care and skill” could properly be equated with the common law duty to take reasonable care, if the scope of the services was adequately identified. (Negligence was relied upon as an alternative cause of action.) However, a different analysis was required with respect to the guarantee of fitness for a particular purpose, language which was not addressed at the trial.  With respect to damages, attention should also be paid to s 267 of the Australian Consumer Law.
In addition, it may be appropriate in some cases to proceed under the Fair Trading Act 1987 (NSW), Pt 3 of which picks up and applies as New South Wales law the Australian Consumer Law.  Under s 4(6) of the Fair Trading Act, the Civil Liability Act is “paramount legislation” and in the case of inconsistency prevails over that Act, but not the Australian Consumer Law (NSW). Accordingly, the relationship of the Australian Consumer Law (NSW) with the Civil Liability Act depends on the effect of s 275 of the Australian Consumer Law, operating as State law.
There was also some confusion in the Court below as to the operation of the so-called “good samaritan” provisions in Pt 8 of the Civil Liability Act. Section 57 provides immunity from civil liability for one who “comes to the assistance of a person who is apparently injured or at risk of being injured.”  The reference to “good samaritan” appeared in a somewhat inarticulate paragraph in the statement of claim alleging a particular of breach of duty in so far as the defendant advised Mr Moore to dive down to alert the plaintiff of his, Mr Moore’s, difficulties, thus placing him at risk of injury “for which events the plaintiff would be bound to act as a good Samaritan and/or otherwise come to his aid”. The trial judge noted submissions that the plaintiff “may have been a good Samaritan in getting [Mr] Moore out of the water and on board the vessel following the dive” but that “the plaintiff ceased to be a good Samaritan thereafter”. These submissions should have been dismissed as incoherent. Nobody had sued the plaintiff; it is a defendant who obtains immunity from liability for acting as a “good samaritan”. So far as the plaintiff was concerned, the provisions in Pt 8 of the Civil Liability Act were simply irrelevant.