Bon Appetit Family Restaurant Pty Ltd v Patricia Mongey

Bon Appetit Family Restaurant Pty Ltd appealed to the Court of Appeal of New South Wales against a judgment concerning an assessment of non-economic loss and the apportionment of culpability in a negligence claim brought by Patricia Mongey. The dispute arose from injuries sustained by Ms Mongey, who fell on the premises of the restaurant.

The primary legal issues before the Court of Appeal were whether the trial judge had made any material factual or legal errors in assessing the non-economic loss suffered by Ms Mongey, and whether the apportionment of liability between the parties was correct. This included considering a contractual arrangement between the parties regarding cleaning responsibilities and whether the area where Ms Mongey fell was excluded from the restaurant's cleaning obligations. The court also considered the implications of section 151Z(2) of the *Workers Compensation Act 1987* (NSW) regarding the reduction of damages recoverable from a third-party tortfeasor.

The Court of Appeal found no material factual or legal error in the trial judge's assessment of Ms Mongey's injuries or the apportionment of liability. The court reasoned that the trial judge had correctly applied the principles of negligence and the relevant provisions of the *Civil Liability Act 2002* (NSW), particularly section 16 concerning the assessment of non-economic loss. The contractual arrangements and the specific location of the fall were considered in determining the extent of the restaurant's duty of care and its apportionment of fault.

Consequently, the appeal was dismissed. The Court of Appeal ordered that Bon Appetit Family Restaurant Pty Ltd pay the costs of the appeal on an indemnity basis, issuing a warning to insurers and legal counsel regarding the bringing of untenable appeals.