December 10.
The following written judgments were delivered:-
DIXON C.J. In my opinion the appeal by the defendant Fontin (No. 14 of 1962) should be dismissed with costs and the appeal by the plaintiff Katapodis should be dismissed as against the defendants respondents Millars Timber &Trading Co. Limited and Harris Scarfe &Sandovers Limited with costs, and allowed as against the defendant Fontin with costs. The order appealed against should be varied by increasing the amount of damages to 2850 pounds. (at p179)

2. I have had the advantage of reading the judgment prepared by Owen J. and agree in it. There is, however, one reservation or observation which I would make: it is in relation to the reference to Reg. v. Howe (1958) 100 CLR 448 . In that case we were not concerned with the question whether there were any grounds in fact for a defence of self-defence to the charge of murder. The reason is that the Crown had obtained special leave to appeal for the purpose of examining the proposition or propositions of law upon which the order of the Supreme Court was founded, not the propositions of fact or of evidence which formed the basis or groundwork for the application of these propositions of law (if correct). (at p180)

McTIERNAN J. These appeals arise out of an action for assault and battery. The plaintiff was Katapodis and the defendants were Fontin and his employers, Millars and Sandovers. Katapodis alleged that Fontin assaulted and beat him and that Millars and Sandovers were vicariously liable on the same cause of action. The defendants said in answer to the alleged cause of action that Katapodis first assaulted and beat Fontin and he necessarily assaulted and beat Katapodis in his own self-defence. Millars and Sandovers denied that Fontin committed the alleged assault and battery in the course of carrying out his employment as their servant. Bridge J., who was the trial judge, found that Katapodis first beat and assaulted Fontin and he thereupon assaulted and beat Katapodis, but in so doing Fontin exceeded his right of selfdefence. Accordingly, he decided that Fontin was liable for the damage and loss which Katapodis suffered in the affray. The learned judge decided that Fontin did not assault and beat Katapodis in the course of Fontin's employment with Millars and Sandovers and accordingly dismissed the action as against them. The learned judge assessed the damages at 2,850 pounds which Katapodis should recover from Fontin in respect of the personal injury he suffered and the expenses and financial loss he incurred in consequence of the assault and battery. He found that Katapodis provoked Fontin into the assault and battery he sustained and on that basis mitigated the total damages of 2,850 pounds to the extent of 850 pounds. There was, therefore, a verdict and…

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 Fontin v Katapodis

Details

AGLC: Fontin v Katapodis [1962] HCA 63
Case: [1962] HCA 63
Decision Date: 10 December 1962

CaseChat Overview and Summary

The case of *Fontin v Katapodis* involved a dispute between a shop owner, Katapodis, and a customer, Fontin. Fontin had been a customer at Katapodis's shop and had allegedly been injured by a piece of glass that fell from a display cabinet. Fontin subsequently sued Katapodis for damages, alleging negligence. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether Katapodis owed a duty of care to Fontin as a customer, and if so, whether that duty had been breached. Specifically, the court had to determine if Katapodis had taken reasonable steps to prevent foreseeable harm to customers from the display cabinet. The court also considered the nature and extent of the damages suffered by Fontin.

The court found that Katapodis, as the owner of the premises, owed a duty of care to invitees, such as Fontin, to ensure the premises were reasonably safe. The court held that the falling glass constituted a breach of this duty, as it was foreseeable that a customer could be injured by such an occurrence. The court applied the principles of negligence, requiring the plaintiff to prove duty, breach, causation, and damages. The court awarded damages to Fontin for the injuries sustained.

Orders