Drinkwater v Howarth

[2006] NSWCA 222

NEW SOUTH WALES COURT OF APPEAL

CITATION:      DRINKWATER & ORS v HOWARTH [2006]  NSWCA 222

FILE NUMBER(S):
40060/06

HEARING DATE(S):            3 August 2006

DECISION DATE:     03/08/2006
EX TEMPORE DATE:        03/08/2006

PARTIES:
Anthony Drinkwater - First Appellant
Gavin Dyer - Second Appellant
All Systems Security Pty Ltd - Third Appellant
Bruce Howarth - Respondent

JUDGMENT OF:      Hodgson JA Tobias JA Basten JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        DC 3399/03

LOWER COURT JUDICIAL OFFICER:     Truss DCJ

COUNSEL:
Mr P Maiden SC/Mr A Harding - Appellants
Mr P G Mahony SC/Mr M Ward - Respondent

SOLICITORS:
Shearman Lawyers, Sydney - Appellants
Ward Maxwell & Co, Sydney - Respondent

CATCHWORDS:
NEGLIGENCE - Civil Liability Act 2002 (NSW) s5B - duty of care - concept of risk as "not far-fetched or fanciful" changed to "not insignificant" - significance of change

LEGISLATION CITED:
Civil Liability Act 2002 (NSW), ss 3B, 5B

DECISION:
(1)  Appeal dismissed
(2)  Appellants to pay the respondent’s costs of the appeal on a party and party basis up until and including 4 April 2006 and on an indemnity basis from 5 April 2006
(3)  The Court reserves liberty to the appellants to approach the Court today or tomorrow if an issue is to be raised as to service of the offer of compromise, such approach to be by communication to my associate.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40060/06
DC 3399/03

HODGSON JA
TOBIAS JA
BASTEN JA

3 August 2006

DRINKWATER AND ORS v HOWARTH

Judgment

1. BASTEN JA:  On 28 July 2000 the respondent (Mr Bruce Howarth) suffered an injury outside the Parkway Hotel at French’s Forest.  It occurred when the respondent was following an acquaintance, Mr Clews, who was being escorted out of the hotel by two security officers, Messrs Anthony Drinkwater and Gavin Dyer, who, with their employer, are the present appellants.  Briefly stated, the respondent was injured when Mr Clews was pushed towards him, causing him and Mr Clews to fall, as a result of which he suffered injuries, particularly to his ankle.

2. On 12 October 2005 his claim against the defendants was upheld by Truss DCJ who made orders for payment of damages by the appellants to the respondent.

3. In this Court the appeal is limited to a challenge based on the fact that her Honour did not expressly apply s 5B of the Civil Liability Act 2002 (NSW) in assessing the breach of duty.

4. The facts may be shortly adverted to without going into detail, which is not necessary in order to dispose of this appeal.

5. Her Honour accepted, at [30], the account of the incident given by the respondent.  That account is set out at [12] and [13] of her Honour’s judgment relevantly as follows:

   “There is also no dispute about the fact that Clews was arguing with the defendants, yelling, struggling and kicking, and that at some point the plaintiff followed them out of the bar.

   The plaintiff said that when he arrived…