1. The defendant admits some allegations in the plaintiff's statement of claim but denies liability, arguing that terms alleged by the plaintiff were not contractual and liability was excluded or limited. 2. The defendant argues that if negligent, contributory negligence by the plaintiff excuses liability as the risk was obvious and voluntarily assumed. 3. The defendant also argues that any loss or damage is excluded by limitations of liability in the contract.

1. IN THE SUPREME COURT No.765844/15
OF VICTORIA AT MELBOURNE
GEORGE TROLLOP Plaintiff
- and –
ADVENTURE AUSTRALIA LTD Defendant
DEFENCE
Date of document: 24 December, 2015
Filed on behalf of: The Defendant
Prepared by: Sol Code: 54321
Higgins Barry Starke Fullagar Tel: 0413826555
Latham & Assoc. DX: 1112 Geelong
Solicitors, Ref: QAZ. 321
127 Nastursham St,
MELBOURNE VIC 3000
DEFENCE
To the statement of claim herein the Defendant says:
1. The Defendant admits the allegations contained in paragraph 1 thereof.
2. The Defendant admits the allegations contained in paragraph 2 thereof.
3. Save for the fact that the conformation letter constituted the contract the
Defendant does not admit the allegations contained in paragraph 3 thereof.
4. The Defendant denies each and every allegation contained in paragraph 5 thereof.
5. The Defendant admits the allegations contained in paragraph 6 thereof.
6. The Defendant denies each and every allegation contained in paragraph 7 thereof.
7. Further to paragraph 7 and 8 thereof, the Defendant says that if the agreement did
contain any of the terms alleged (which is specifically not admitted), liability of
the Defendant for any breach thereof (which breach is specifically denied) was
excluded or limited so as to negative any liability of the Defendant.
PARTICULARS
i. There was no need for the Defendant to follow the advertised route, as the
advertised route was not a contractual term and served merely as a guidance
as to the route that will be chosen by the bus driver

2. ii. The guarantee of a ‘great time’ was not a contractual term as it was a mere
sales puff
iii. The Defendant was prevented from facilitating further visits to world
heritage sites by reason of frustration of the contract caused by the incident
iv. If there was an implied term for the Defendant to provide reasonable care
(which the Defendant specifically denies), such a term was not breached by
the Defendant as it was the Plaintiff’s own decision to remain on the bus
during the incident
v. If there was an implied term for the Defendant to exercise reasonable skill
(which the Defendant specifically denies), such a term was not breached by
the Defendant as it is unreasonable for the bus driver to predict the depth of
the Pushalong River prior to the incident
8. The Defendant does not admit any allegation contained in paragraph 9 thereof.
9. The Defendant denies each and every allegation contained in paragraph 10 hereof.
10. The Defendant denies the allegations contained in paragraph 11 thereof.
11. If the Defendant was negligent (which the Defendant specifically denies), liability
of the Defendant for any negligence thereof (which negligence is specifically
denied) was excluded or limited so as to negative any liability of the Defendant by
virtue of contributory negligence on part of the Plaintiff
PARTICULARS
i. The Defendant is excused from liability pursuant to s 53 of The Wrongs
Act 1958 (Vic) (‘The Wrongs Act’) as the Plaintiff ought to have
foreseen the danger to him by remaining on the bus as it attempted the
crossing of the Pushalong River but chose to negligently remain on the
bus despite the obvious risk
ii. The Defendant is excused from liability pursuant to s 54 of The Wrongs
Act as the Plaintiff voluntarily assumed the risk by choosing to remain on
the bus despite awareness of the risk
iii. The Defendant is excused from liability pursuant to s 55 of The Wrongs
Act as crossing a river in a bus possesses an inherent risk which cannot be
avoided by the exercise of reasonable care
12. The Defendant does not admit the allegations contained in paragraph 12.

3. 13. If the Plaintiff did suffer loss or damage (which the defendant specifically denies)
the Defendant is saved from liability by virtue of the provisions contained in the
contract which was agreed to by the Plaintiff.
PARTICULARS I
i. The terms of the contract included a clause which limits the Defendants
liability for the Plaintiff’s belongings to $200
ii. The terms of the contract included a clause which excused the
Defendant from liability for any injury suffered by the Plaintiff
iii. The terms of the contract included a clause which excused the
Defendant from liability for any cancellation or abandonment of the
tour for any cause whatsoever
Henry Higgins