Amanda's on the Edge Pty Ltd v Dries

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Amanda's On The Edge Pty Ltd v Dries [2011] NSWCA 358

Hearing dates:

21 October 2011

Decision date:

24 November 2011

Before:

Allsop P at 1
Beazley JA at 39
Giles JA at 40

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - civil - fact finding - competing evidence - no error in approach of primary judge.

TORTS - negligence - intoxication - not proved that plaintiff intoxicated to extent that capacity to exercise reasonable care and skill impaired.

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 49 and 50

Category:

Principal judgment

Parties:

Amanda's On The Edge Pty Ltd (Appellant)
Andrew James Dries (Respondent)

Representation:

Mr R W Seton SC and Mr D P M O'Dowd (Appellant)
Mr J E Sexton SC and Mr C A W Hart (Respondent)
Holman Webb (Appellant)
Bale Boshev Lawyers (Respondent)

File Number(s):

2010/322888

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2010-09-14 00:00:00

Before:

Sidis DCJ

File Number(s):

2008/314501

Judgment

1. ALLSOP P: At about 12:30am on 19 March 2007, Mr Andrew Dries, the respondent (plaintiff below) fell from an unguarded wall. The wall was adjacent to a sloping driveway leading to a garage underneath a building that housed the appellant's restaurant, located in the Hunter Valley.

1. Mr Dries had been one of a number of guests celebrating the wedding of two friends, Rebecca and James Bax.

1. An understanding of the layout of the premises: the restaurant building, the lawn, the marquee, the driveway and the configuration of the road assists in understanding what happened. These reasons necessarily assume some familiarity with the layout that is best appreciated by referring to the bundle of photographs used by counsel in the appeal, being Exhibits H, 3 and A and photographs 1 to 43 of Dr Cubitt's expert report.

1. It is to be appreciated that the primary judge had a view of the premises, which her Honour described as follows:

"At the request of the defendant I attended the premises at about 8:30pm on 7 September 2010. Regretfully, because the restaurant was operating, I was unable to view the premises with the internal and external lighting turned off and I was therefore unable to replicate the conditions claimed by the plaintiff to exist at the time of his fall. I was able to note that the area of the garden through which the plaintiff walked was well lit by verandah lighting as was the void into which he fell ."

(Emphasis added.)

1. At the end of the evening, Mr Dries and his partner Ms Amy Tunbridge had…