G. Wagstaff v Haslam - [2006] NSWSC 295

CITATION: G. Wagstaff v Haslam & Anor [2006] NSWSC 295

HEARING DATE(S): 13-15, 20-23 February, 6-7 March 2006

JUDGMENT DATE :
21 April 2006

JURISDICTION: Common Law

JUDGMENT OF: Studdert J

DECISION: Judgment for the plaintiff in the sum of $49,208. Costs reserved.

LEGISLATION CITED: Civil Liability Act 2002

PARTIES: Gerard Gregory Wagstaff (Plaintiff)
Anthony James Haslam (1st Defendant)
D & D Haslam Pty Limited (2nd Defendant)

FILE NUMBER(S): SC 20216/04

COUNSEL: R.W. Seton SC/J. Reimer (Plaintiff)
G. Parker (Defendants)

SOLICITORS: Walsh & Associates (Plaintiff)
Ebsworth & Ebsworth (Defendants)

LOWER COURT DATE OF DECISION: 02/13/2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Friday 21 April 2006

20216/04 GERARD GREGORY WAGSTAFF v ANTHONY JAMES HASLAM & ANOR
JUDGMENT

1 HIS HONOUR: Gerard Wagstaff seeks damages from the first defendant, Anthony James Haslam, and from the second defendant, D & D. Haslam Pty Limited, in consequence of events that occurred at the Greenhouse Tavern on 3 May 2000. On that date the plaintiff was assaulted whilst a patron at the tavern and he alleges that the defendants were negligent in the circumstances in which he came to be assaulted.

2 Liability was very much in issue in this cause and, in addition, the defendants raised a defence of contributory negligence.

3 This plaintiff attended the tavern with his wife for a drink after work. Mrs Wagstaff has also brought proceedings against the defendants for harm occasioned to her in consequence of the assault upon her husband and the circumstances in which it took place. I have today delivered judgment in Mrs Wagstaff's case ([2006] NSWSC 294). I am satisfied that the defendants were negligent in the circumstances in which that assault upon this plaintiff occurred for the reasons which I stated in my judgment in Mrs Wagstaff's case. I will not repeat what I wrote concerning the issue of liability in Mrs Wagstaff's claim, but I draw attention in particular to paras [4]-[66] of the judgment in that case.

4 For the reasons expressed in that judgment, I am satisfied that the first defendant is the licensee and the second defendant is the occupier of the tavern. Each is liable to this plaintiff for the harm suffered by him as a consequence of the breaches of duty I have found.

5 Contributory negligence was pleaded as a defence in this case and particulars of that defence were pleaded as follows:

"(a) Remaining in close proximity to people who were obviously intoxicated;

(b) Failing to leave the premises when those persons became abusive;

6 As I indicated in my judgment in Mrs Wagstaff's case (see [72] of that judgment), I make a finding of contributory negligence by this plaintiff and I consider his contributory negligence calls for a reduction in the damages to which he would otherwise have been entitled by twenty percent. I will now state my reasons for that conclusion.

7 Mr Wagstaff found himself in…

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 G. Wagstaff v Haslam

Details

AGLC: G. Wagstaff v Haslam [2006] NSWSC 295
Case: [2006] NSWSC 295
Decision Date: 21 April 2006

CaseChat Overview and Summary

The plaintiff, Gerard Wagstaff, sought damages from the first defendant, Anthony James Haslam, and the second defendant, D & D Haslam Pty Limited, following an assault that occurred at the Greenhouse Tavern on 3 May 2000. The plaintiff alleged that the defendants were negligent in the circumstances in which he came to be assaulted. The defendants contested liability and raised a defence of contributory negligence. The primary legal issues in the case were whether the defendants were negligent and, if so, whether the plaintiff's contributory negligence should reduce the damages awarded. The court found that the defendants were indeed negligent in the circumstances leading to the assault, a conclusion reached after examining the evidence and considering the defendant's responsibilities as the licensee and occupier of the tavern. In regard to contributory negligence, the court determined that the plaintiff's actions, including making an offensive gesture and using offensive language, contributed to the assault. Consequently, the court reduced the damages by 20% to account for the plaintiff's contributory negligence. The court awarded the plaintiff $49,208 in damages, reflecting the reduction for contributory negligence. Costs were reserved for later determination.

Orders