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Freudenstein v Marhop Pty Ltd

Freudenstein v Marhop Pty Ltd

Case [2010] NSWSC 724 8 July 2010

Negligence

Duty of Care

Causation

Contributory Negligence

Compensatory Damages

Tort Law

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CITATION: Freudenstein v Marhop Pty Ltd & Ors [2010] NSWSC 724

HEARING DATE(S): 22-26/2/10

JUDGMENT DATE :
8 July 2010

JURISDICTION: Common Law Division

JUDGMENT OF: Kirby J

DECISION: 1. There should be a verdict for the plaintiff in the sum of $127,703, plus interest to be agreed or assessed.
2. The defendants to pay the plaintiff's costs.

CATCHWORDS: TORTS - negligence - intoxicated patron of hotel - hotel being renovated - duty of care of hotel and builder - dangerous premises - fall from roof - causation - contributory negligence - DAMAGES - multiple injuries - comparison with a worst case - loss of earning capacity.

LEGISLATION CITED: Liquor Act 1982 (NSW)
Evidence Act 1995
Civil Liability Act 2002
Civil Liability Amendment (Personal Responsibility) Act 2002
Law Reform (Miscellaneous Provisions) Act 1965

CATEGORY: Principal judgment

CASES CITED: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614
Phillis v Daly (1988) 15 NSWLR 65
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113
CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390
Adeels Palace Pty Limited v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431
Hogan v Rusty Rees Pty Ltd (Supreme Court of Qld, Connelly, Ryan and Cooper JJ, 8.6.89, unreported)
Lanahmede Pty Ltd v Koch [2004] SASC 204
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Francis & Ors v Lewis [2003] NSWCA 152
March v E & M H Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Caterson v Commissioner for Railways NSW [1973] HCA 12, (1973) 128 CLR 99
Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 149 ALR 25
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529
Joslyn v Berryman & Anor [2003] HCA 34; (2003) 214 CLR 552
Berryman v Joslyn [2004] NSWCA 121
The Nominal Defendant v Lane [2004] NSWCA 405
Mackenzie v The Nominal Defendant [2005] NSWCA 180
Dos Santos v C Morris Painting & Decorating & Anor [2006] NSWCA 54
Russell v Rail Infrastructure Corporation [2007] NSWSC 402
Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498

PARTIES: Douglas Freudenstein (Plaintiff)
Marhop Pty Limited t/as Mona Vale Hotel (ACN 054 697 102) (1st Def)
Bradley Robert Jenkins (2nd Def)
BSB Holdings Pty Limited (ACN 003 607 109) (3rd Def)

FILE NUMBER(S): SC 2002/20171

COUNSEL: T D F Hughes (Pl)
M J Cranitch SC/B…

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 Freudenstein v Marhop Pty Ltd

Details

AGLC: Freudenstein v Marhop Pty Ltd [2010] NSWSC 724
Case: [2010] NSWSC 724
Decision Date: 8 July 2010

CaseChat Overview and Summary

The matter before the court involved the plaintiff, Freudenstein, who suffered injuries after falling from a roof while at the defendant's hotel, Marhop Pty Ltd. The hotel was undergoing renovations at the time, and the plaintiff claimed that the fall was due to the negligent state of the premises. The dispute centred on the duty of care owed by both the hotel and the builder, the dangerous nature of the premises, and the extent of the plaintiff's injuries and their impact on earning capacity. The court was required to determine whether the defendants owed a duty of care to the plaintiff, whether there was a breach of that duty, whether the breach caused the plaintiff's injuries, and the extent of damages to be awarded.

The central legal issues addressed by the court were the existence and scope of the duty of care owed by both the hotel and the builder, and the causation of the plaintiff's injuries. The court examined whether the hotel and builder had a duty to ensure the safety of the premises, and whether they breached this duty by allowing the plaintiff to access a dangerous area. The court also considered whether the plaintiff's contributory negligence, such as being intoxicated at the time of the incident, affected the outcome. Additionally, the court evaluated the extent of the plaintiff's injuries and the impact on his earning capacity, and whether the damages awarded were commensurate with the severity of the injuries.

The court held that both the hotel and the builder owed a duty of care to the plaintiff to ensure the safety of the premises. The court found that this duty was breached when the defendants allowed the plaintiff to access a dangerous area. The court also found that the breach directly caused the plaintiff's injuries, and that the plaintiff's contributory negligence did not absolve the defendants of liability. Regarding damages, the court awarded the plaintiff compensation for his injuries and loss of earning capacity, taking into account the severity of the injuries and comparing them to a hypothetical worst-case scenario. The court determined that the damages awarded were appropriate given the circumstances of the case.

The court ordered the defendants to pay the plaintiff compensation for his injuries and loss of earning capacity, with specific amounts allocated for pain and suffering, medical expenses, and lost earnings. The court also directed the defendants to pay the plaintiff's legal costs.

Orders