Negligence - Appellant injured in fall at hotel - Whether known prankster tripped appellant in hotel - Whether hotel owed duty to patrons to stop conduct of prankster - Whether trial judge erred in finding that appellant failed to prove prankster tripped her - Turns on own facts
Williams v The Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; (2000) Aust Torts Reports 81‑578
JUDGMENT OF THE COURT: This is an appeal against a decision of Keen DCJ, who dismissed the appellant's claim for damages for personal injury arising out of an accident at the respondent's premises.
The appellant was injured while playing pool at the respondent's hotel when she fell over while taking a shot at the pool table. The substantive issues in the case were whether, as alleged by the appellant, she fell as a result of being tripped by another patron of the hotel, Mr Wright, and, if so, whether the respondent was negligent in failing to have taken steps to prevent Mr Wright from continuing to engage in a known propensity to trip patrons.
The primary judge dismissed the claim, concluding that he was not satisfied the appellant had been tripped by Mr Wright. The appellant contends that his Honour erred: that on the evidence the only finding reasonably open was that the appellant fell because she was tripped by Mr Wright.
For the reasons which follow, we are not persuaded that the primary judge erred and accordingly we would dismiss the appeal.
The pleaded case
In her statement of claim, the appellant pleaded, in substance, that at about 6.30 pm on 30 October 2009 she was engaged in a game of pool at the respondent's premises. As she held the pool cue in her hand and leaned forward over the pool table, Mr Wright tripped her by striking the back of her ankles. As…
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.
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AGLC
Jones v Darkan Hotel [2014] WASCA 133
Case
[2014] WASCA 133
Decision Date
CaseChat Overview and Summary
In the case of Jones v Darkan Hotel, the appellant, Ms Jones, sought damages for personal injuries she sustained while playing pool at the respondent's premises. Ms Jones alleged that she fell due to being tripped by another patron, Mr Wright, who had a history of engaging in pranks that involved attempting to trip patrons. The respondent denied that Mr Wright had ever actually tripped anyone and contended that it was not negligent in failing to prevent Mr Wright's conduct. The primary judge dismissed Ms Jones's claim, concluding that she had not proven that Mr Wright tripped her, and thus, the respondent was not liable.
The legal issues before the court involved whether Ms Jones had established that she was tripped by Mr Wright and, if so, whether the respondent was negligent in not taking steps to prevent Mr Wright's conduct. The primary judge found that while Mr Wright engaged in pranks that could potentially lead to tripping, there was no evidence that he had actually tripped anyone, including Ms Jones. The court had to determine if the primary judge's finding was open to the evidence and if the respondent owed a duty of care to prevent Mr Wright's actions.
The court found that the primary judge's conclusion that Ms Jones was not tripped by Mr Wright was open to the evidence. The court observed that the evidence showed Mr Wright's pranks were more of a pretence at tripping rather than actual tripping. The court upheld the primary judge's decision, stating that Ms Jones had not proven on the balance of probabilities that she was tripped by Mr Wright. As a result, the appeal was dismissed, and the respondent was not found liable for Ms Jones's injuries.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
JUDGMENT OF THE COURT: This is an appeal against a decision of Keen DCJ, who dismissed the appellant's claim for damages for personal injury arising out of an accident at the respondent's premises. The appellant was injured while playing pool at the respondent's hotel when she fell over while taking a shot at the pool table. The substantive issues in the case were whether, as alleged by the appellant, she fell as a result of being tripped by another patron of the hotel, Mr Wright, and, if so, whether the respondent was negligent in failing to have taken steps to prevent Mr Wright from continuing to engage in a known propensity to trip patrons. The primary judge dismissed the claim, concluding that he was not satisfied the appellant had been tripped by Mr Wright. The appellant contends that his Honour erred: that on the evidence the only finding reasonably open was that the appellant fell because she was tripped by Mr Wright. For the reasons which follow, we are not persuaded that the primary judge erred and accordingly we would dismiss the appeal. In her statement of claim, the appellant pleaded, in substance, that at about 6.30 pm on 30 October 2009 she was engaged in a game of pool at the respondent's premises. As she held the pool cue in her hand and leaned forward over the pool table, Mr Wright tripped her by striking the back of her ankles. As a result, the appellant overbalanced and fell to the ground, landing heavily on her back and buttocks and thereby sustaining injury (par 5). The appellant alleged that at all material times Mr Wright was a regular patron at the premises (par 6.1), and that he had a longstanding propensity to indulge in unruly and disorderly behaviour at the premises in that he often attempted to overbalance unsuspecting patrons by tripping them, surreptitiously moving their stools or chairs while they were standing, and/or sticking his leg in front of them as they walked past (par 6.2), and that the respondent was aware of that propensity (par 6.3). The appellant alleged that the respondent was negligent in failing to take steps to address the risk of injury to patrons at the premises from Mr Wright's behaviour by, among other things, threatening to remove, or actually removing, Mr Wright from the premises (par 7). The respondent, in substance, did not admit that the appellant suffered the alleged injury and, while it admitted that Mr Wright was a regular patron at the hotel, it denied that he had the propensity claimed by the appellant or that it knew of such a propensity. It also pleaded contributory negligence. The primary judge found, in effect, that Mr Wright attended the hotel on a regular basis and from time to time, in the nature of a prank, he would put his leg out in front of someone as they were passing by, in a pretence at tripping, but with no intention of actual tripping [99], [103]. There was no evidence that Mr Wright had ever actually tripped anyone [99], [102]. 'At its highest' in the past, 'his actions almost led to a trip or stumble when Ms Hamilton [an employee of the hotel] almost lost the plate of food she was carrying' [99].