Desmond v Cullen

[2001] NSWCA 238

CITATION:	Desmond v Cullen [2001] NSWCA 238
FILE NUMBER(S):	CA 40515/00
HEARING DATE(S):	18 June 2001
JUDGMENT DATE:	23 July 2001
PARTIES :	Peter John Desmond v John Charles Cullen
JUDGMENT OF:	Spigelman CJ at 1; Young CJ in Eq at 14; Grove J at 15

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 379/95
LOWER COURT JUDICIAL OFFICER :	Taylor DCJ

COUNSEL:	F. McAlary QC with P. Fitzsimmons (Appellant) C. Hoeben SC (Respondent)
SOLICITORS:	Abbott Tout (Appellant) Curwood & Partners (Respondent)
CATCHWORDS:	NEGLIGENCE - CONTRIBUTION BETWEEN TORTFEASORS - APPELLANT MOTORIST LIABLE TO PAY DAMAGES TO RUN DOWN PEDESTRIAN - INTOXICATION OF PEDESTRIAN - CLAIM BY APPELLANT FOR INDEMNITY OR CONTRIBUTION FROM RESPONDENT HOTEL LICENSEE WHO SERVED PEDESTRIAN WITH LIQUOR - SUFFICIENCY OF EVIDENCE TO ESTABLISH BREACH OF DUTY OF CARE BY RESPONDENT TOWARDS PEDESTRIAN - SUFFICIENCY OF EVIDENCE OF CAUSATION - OBSERVATIONS ON POTENTIAL LIABILITY OF INNKEEPERS D
CASES CITED:	Bendix Mintex Pty Ltd v Barnes 1997 42 NSWLR 307 Chapman v Hearst (1991) 106 CLR 112 Chordas v Bryan (Wellington) Pty Ltd (1988) 20 FCR 91; 91 ALR 149 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Hay v Sheargold unrep SC (NSW) 18 April 1996 Johns v Cosgrove 1997 27 MVR 110 Jordan House Ltd v Menow & Honsberger 1973 38 DLR (3d) 105 March v Stramare (E & MH) Pty Ltrd (1991) 171 CLR 506 Mayfield Investments Limited v Stewart 1995 121 DLR (4th) 222 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] 75 ALJR 164 Munro v Porthkerry Park Holiday Estates Ltd (1984) TLR 138 Oxlade v Gosbridge Pty Ltd & Ors unrep CA (NSW) 18 Dec 1998 Perre v Apand Pty Limited (1999) 198 CLR 180 Seltsam Pty Ltd v McGuinnes 2000 49 NSWLR 262 Wyong Shire Council v Shirt (1979-1980) 146 CLR 40
DECISION:	APPEAL DISMISSED WITH COSTS

The appellant was the driver of a motor car which collided with a pedestrian who was walking to his home which was situated about 700 metres from a hotel at which he had consumed a significant quantity of liquor. The pedestrian claimed damages against the appellant who sought indemnity or contribution from the respondent publican in respect of such damages. Consent judgment was entered in favour of the pedestrian against the appellant and the trial judge dismissed the claim against the respondent.

HELD: It can be accepted that the licensee of the hotel owed a duty of care to patrons of the hotel and the duty is not confined to performance within the boundary of the hotel property however the evidence in the case did not establish breach of any such duty nor did it establish a causative link between the injury suffered by the pedestrian and his inebriation and hence give rise to contribution by the respondent to damages payable by the appellant to the pedestrian.

CA 40515/00

DC 379/95

SPIGELMAN CJ
YOUNG CJ in Eq
GROVE J

Monday 23 July 2001


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