Fuz v Carter - [2006] NSWSC 771

CITATION: Fuz v Carter & Ors [2006] NSWSC 771

HEARING DATE(S): 10-18 July, 21-22 August 2006

JUDGMENT DATE :
12 September 2006

JURISDICTION: Common Law Division
Professional Negligence List

JUDGMENT OF: Studdert J

DECISION: Verdict and judgment for the plaintiff against the 1st Defendant, the 3rd Defendant, the 4th Defendant, the 5th Defendant and the 6th Defendant in the sum of $573,519. Verdict and judgment for the 2nd Defendant on the plaintiff's claim against him. Verdict and judgment for the 7th Defendant on the plaintiff's claim against it. Order that the 1st, 3rd, 4th, 5th and 6th Defendants pay the plaintiff's costs in the proceedings brought by the plaintiff against them. Order that the plaintiff pay the 2nd Defendant's costs in relation to the proceedings brought against him by the plaintiff. No order as to costs of the proceedings against the 7th Defendant.

LEGISLATION CITED: Civil Liability Act

CASES CITED: Deatons Pty Limited v Flew (1940) 79 CLR 370
Graham v Baker (1961) 106 CLR 340
Fontin v Katapodis (1962) 108 CLR 177
Lamb v Cotogno (1987-1988) 164 CLR 1
Sandstone DMC Pty Limited & Anor v Trajkovski & Anor [2006] NSWCA 205
State of New South Wales v Lepore (2003) 212 CLR 511

PARTIES: Brent William Fuz (Plaintiff)
Nicholas Carter (1st Defendant)
Mark Matthew Watson (2nd Defendant)
Allan William Forsyth (3rd Defendant)
Walter Alexander Galbraith (4th Defendant)
Tipsy Pty Limited (5th Defendant)
Mount Mayon Pty Limited (6th Defendant)
Enima Pty Limited (7th Defendant)

FILE NUMBER(S): SC 20510/02

COUNSEL: D.T. Kennedy SC/G. Smith (Plaintiff)
In person (1st Defendant)
In person (2nd Defendant)
R.S. McIlwaine SC/A. Davis (3rd, 4th, 5th, 6th, 7th Defendants)

SOLICITORS: Lough Wells Duncan (Plaintiff)
Curwood & Partners (3rd, 4th, 5th, 6th, 7th Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Tuesday 12 September 2006

20510/02 BRENT WILLIAM FUZ v NICHOLAS CARTER & ORS
JUDGMENT

1 HIS HONOUR: The plaintiff, Brent William Fuz, has sued the first defendant, Nicholas Carter, the second defendant, Mark Matthew Watson, the third defendant, Allan William Forsyth, the fourth defendant, Walter Alexander Galbraith, the fifth defendant, Tipsy Pty Limited, the sixth defendant, Mount Mayon Pty Limited, and the seventh defendant, Enima Pty Limited, claiming damages for injuries sustained when he was assaulted outside the Legends Nightclub in Nowra on 19 March 2000.

2 The first defendant, who appeared in person, was joined in the proceedings on the basis that he was allegedly the person who assaulted the plaintiff. The second defendant, who again was not legally represented, was joined in the proceedings on the basis that he operated the nightclub. The remaining defendants were all represented, having the benefit of the same legal representation. The allegation was made against all but the first defendant that each of the other defendants employed the first defendant and was vicariously liable for his actions. It was also alleged against the defendants that they were each negligent.

3 Those defendants legally represented denied liability to the plaintiff and they also…

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 Fuz v Carter

Details

AGLC: Fuz v Carter [2006] NSWSC 771
Case: [2006] NSWSC 771
Decision Date: 12 September 2006

CaseChat Overview and Summary

In the case of Fuz v Carter, Brent William Fuz sued Nicholas Carter and others for damages arising from an assault outside the Legends Nightclub in Nowra on 19 March 2000. The first defendant, Nicholas Carter, was alleged to have assaulted the plaintiff. The remaining defendants were accused of vicarious liability for Carter's actions and negligence in failing to prevent the assault. The defendants denied liability and raised contributory negligence as a defence. The court found that Carter was indeed the person who assaulted the plaintiff, and that the third, fourth, fifth and sixth defendants were vicariously liable for Carter's actions. The second defendant was not found to be liable for the assault. The court held that the third, fourth, fifth and sixth defendants were vicariously liable for the assault committed by Carter as it was connected to his authorised employment activities. The court found that the plaintiff had suffered a significant head injury, which resulted in ongoing problems such as memory loss, concentration difficulties, and anger control issues. The court awarded damages to the plaintiff, including general damages for the non-economic aspects of the injury, interest on past damages, out-of-pocket expenses, future medical and pharmaceutical expenses, loss of earnings and earning capacity, superannuation benefits, past gratuitous services, and future domestic assistance.

The court awarded the plaintiff a total of $573,519 in damages against the first, third, fourth, fifth and sixth defendants. The second and seventh defendants were found not liable for the plaintiff's claims against them. The court ordered the first, third, fourth, fifth and sixth defendants to pay the plaintiff's costs in the proceedings, while the plaintiff was ordered to pay the second defendant's costs. No order was made as to costs of the proceedings against the seventh defendant.

Orders