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Alagic v Callbar Pty Ltd

Alagic v Callbar Pty Ltd

Case [2000] NTCA 15 8 December 2000

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Alagic v Callbar Pty Ltd [2000] NTCA 15
PARTIES:ALAGIC, Esad

v
CALLBAR PTY LTD

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:No. AP21 of 1999
DELIVERED:  8 December 2000
HEARING DATES:  12, 13 September, 27 November 2000
JUDGMENT OF:  ANGEL, THOMAS & RILEY JJ

CATCHWORDS:
Contract – hotel – dangerous premises – liability of occupier – implied warranty
of fitness of premises – liability not dependant on personal fault of occupier – hotel patron injured by ceiling tile falling on him – contractual entrant despite no charge for actual entry – inference drawn that ceiling was not in a reasonably fit and safe condition
Negligence – dangerous premises – occupier’s liability - contractual relationship
contrasted with invitor-invitee relationship – distinction between cause of action in contract and cause of action in negligence

Brannigen v Harrington (1921) 37 TLR 349, applied
Maclenan v Segar [1917] 2 KB 325, applied
Watson v George (1953) 89 CLR 409, applied
Voli v Inglewood Shire Council (1963) 110 CLR 74, discussed
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, discussed
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, discussed
Calvert v Stollznow [1982] 1 NSWLR 175, not followed
Morawski v State Railway Authority of NSW (1988) 14 NSWLR 374,
not followed
Stannus v Graham (1994) Aust Torts Reports 81-293, not followed
Ordukaya v Hicks [2000] NSWCA 180, not followed
Drotem Pty Ltd v Manning [2000] NSWCA 320, not followed
Downunder Rick Café Pty Ltd v Roberts (1998) Aust Torts Reports 81-481,
not followed
Cosgrave v Busk (1965) 55 DLR(2^nd) 98, discussed
Cosgrave v Busk (1966) 59 DLR (2^nd) 425, discussed
Cottee v Franklins Self Serve Pty Ltd [1997] 1 QdR 469, discussed
Derbyshire Building Co Pty Ltd v Becker (1962) 107 CLR 633, discussed
Hay v Sheargold, unreported, Dunford J, Supreme Court of NSW, 19 April 1996,
approved
REPRESENTATION:
Counsel:
Appellant:Mr J B Waters QC
Respondent:  Mr T Bryant
Solicitors:
Appellant:Hunt & Hunt
Respondent:  Cridlands
Judgment category classification:           A
Judgment ID Number:  ang20011
Number of pages:  19

ang20011
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
Alagic v Callbar Pty Ltd [2000] NTCA 15
No. AP 21 of 1999
BETWEEN:

ESAD ALAGIC
Appellant

AND:

CALLBAR PTY LTD
Respondent

CORAM:ANGEL, THOMAS & RILEY JJ

REASONS FOR JUDGMENT
(Delivered 8 December 2000)
ANGEL J:

On January 10, 1920 Ms Brannigen was sitting in a fish shop, in England, eating stewed eel, when, for reasons unexplained, a portion of the ceiling fell and injured her. She claimed damages from the owner of the fish shop on the ground of negligence and on the ground that the premises were not as safe as reasonable care and skill could make them. Her claim succeeded, see Brannigen v Harrington (1921) 37 TLR 349.

In September 1992 the present appellant was seated drinking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alagic v Callbar Pty Ltd

Details

AGLC: Alagic v Callbar Pty Ltd [2000] NTCA 15
Case: [2000] NTCA 15
Decision Date: 8 December 2000

CaseChat Overview and Summary

Esad Alagic, the appellant, appeals against a decision of the Supreme Court of the Northern Territory which dismissed his claim for damages against Callbar Pty Ltd, the respondent, for injuries sustained when a ceiling tile fell on him whilst he was drinking at the Don Hotel in Darwin, which was occupied by the respondent. The appellant’s claim was dismissed on the basis that the respondent had not breached a contractual warranty that the premises were as safe as reasonable care and skill could make them and that there was no personal negligence on the part of the respondent. The Court of Appeal allowed the appeal and found that the respondent had breached the implied contractual warranty that the premises were as safe as reasonable care and skill could make them. The Court of Appeal held that the respondent was liable for the electrician’s lack of care and skill which was responsible for the defect in the ceiling and that the respondent was liable because an accident of the kind that befell the appellant could not have happened without negligence on the part of someone. The appeal should be allowed and judgment entered for the appellant. Having dismissed the appellant’s claim, the learned Chief Justice proceeded to consider certain aspects relating to the question of damages. In doing so he discussed the evidence and made certain findings of fact adverse to the appellant. The learned Chief Justice did not quantify the appellant’s damages. Certain of his Honour’s findings of fact were the subject of grounds of appeal. In the course of the hearing of the appeal, the Court of Appeal indicated to counsel it would not entertain those grounds of appeal and that if it were of the view that the appeal on liability should be allowed that the appropriate course would be to enter judgment for the appellant for a sum to be assessed and remit the matter back to the learned Chief Justice for the assessment of damages, the appellant remaining free by way of appeal to contest such assessment and any findings of fact related thereto.

Orders