Hungry Jack's Pty Ltd v Fourtounas

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hungry Jack’s Pty Ltd v Fourtounas [2020] NSWCA 325

Hearing dates:

10 December 2020

Decision date:

10 December 2020

Before:

Basten JA at [1];
White JA at [18]

Decision:

(1)   Dismiss the summons seeking leave to appeal dated 27 August 2020.

(2)   Direct the applicant to pay the respondent’s costs in this Court.

Catchwords:

PRACTICE AND PROCEDURE – leave to appeal – failure to address defence – absence of factual findings supporting defence – whether issue of principle raised – whether defence more than merely arguable

TORTS – duty to warn – immunity from liability if risk “obvious” – whether immunity limited to verbal risk warnings – application of Civil Liability Act 2002 (NSW), ss 5F, 5H

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5F, 5H

Civil Procedure Act 2005 (NSW), Pt 6

District Court Act 1973 (NSW), s 127

Supreme Court Act 1970 (NSW), s 101

Cases Cited:

Be Financial Pty Ltd atf Be Financial Operations Trust v Das [2012] NSWCA 184

Coffs Harbour City Council v Polglase [2020] NSWCA 265

Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3.

Council of the City of Sydney v Bishop [2019] NSWCA 157

Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29

Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103

Category:

Procedural and other rulings

Parties:

Hungry Jack’s Pty Ltd (Applicant)
Sylvia Fourtounas (Respondent)

Representation:

Counsel:
Mr D A Lloyd SC / Ms S Andrews (Applicant)
Mr R Sheldon SC / Mr E P Anderson (Respondent)

Solicitors:
Gillis Delaney Lawyers (Applicant)
Gerard Malouf & Partners (Respondent)

File Number(s):

2020/177378

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

29 May 2020

Before:

Norton SC DCJ

File Number(s):

2019/46773

Judgment

1. BASTEN JA: On 21 September 2017 Sylvia Fourtounas (the plaintiff) tripped over a concrete wheel-stop in the car park of Hungry Jack’s at Granville. She suffered injuries for which she claimed damages in proceedings brought in the District Court. On 29 May 2020 Norton SC DCJ gave judgment in favour of the plaintiff in the sum of $35,800. The defendant, Hungry Jack’s Pty Ltd, has filed a summons seeking leave to appeal. There is no appeal as of right from the judgment, being a final judgment in an amount less than $100,000: District Court Act 1973 (NSW), s 127(2)(c). (It is convenient to refer to Hungry Jack’s Pty Ltd as “the applicant”.)

2. There was no dispute at trial that, as the occupier of the premises, the applicant owed persons coming onto the premises a duty to take reasonable care to avoid foreseeable risks of injury. Although in the pleadings the plaintiff identified 20 particulars of negligent failure on the part of the applicant, the case run at trial turned entirely upon whether the applicant was at fault in failing to paint a wheel-stop, so as to distinguish it from the surrounding surface of the car park,…