Matouk v Hungry Jacks - [2009] NSWSC 1176

CITATION: MATOUK v HUNGRY JACKS [2009] NSWSC 1176

HEARING DATE(S): 14 September 2009

JUDGMENT DATE :
5 November 2009

JUDGMENT OF: Mathews AJ at 1

DECISION: 1. I order that the first defendant pay to the plaintiff $35,000 within one month of today, being part of the damages sought to be recovered by the plaintiff in these proceedings.
2. I order that the costs of the application be costs in the cause.

LEGISLATION CITED: Civil Procedure Act 2005
Civil Liability Act 2002

CASES CITED: Drotem Pty Ltd v Manning [2000] NSWCA 320
Schott Kem Limited v Bentley [1991] 1QB 61

PARTIES: Pierre MATOUK (Plaintiff)
Hungry Jacks Pty Limited (First Defendant)
Competitive Foods Australia Pty Limited (Second Defendant)

FILE NUMBER(S): SC 20587/2008

COUNSEL: Mr J Anderson (Plaintiff)
Mr D Kelly (1st & 2nd Defendants)

SOLICITORS: Martin Bell & Co (Plaintiff)
Gillis Delaney Lawyers (1st & 2nd Defendants)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROGRESSIVE LIST

MATHEWS AJ
Thursday, 5 November 2009

2008/20587

Pierre MATOUK v HUNGRY JACKS PTY LIMITED AND 1 OR

JUDGMENT

Background

1 On 22 December 2008 the plaintiff, Pierre Matouk, commenced proceedings in this Court seeking damages for personal injuries. The claim arouse out of an incident which occurred at a Hungry Jacks store at Warwick Farm on 10 August 2008. That morning the plaintiff went to Hungry Jacks and bought some food which he took to a table provided for that purpose. He went to sit down on a seat at the table, but the seat collapsed, causing him to fall onto the ground. He was taken by ambulance to Liverpool Hospital where he complained of back pain and partial aesthesia in his left leg. An x-ray of the spine showed no fractures and the plaintiff was discharged later that day.

2 The plaintiff claims that as a result of the injuries sustained in this fall he has suffered numerous physical and psychological symptoms, as I shall describe shortly. These in turn have meant that he has been unable to return to his pre-injury employed as a plumber’s labourer.

3 The Statement of Claim asserts, in the alternative, that each of the defendants was the occupier of the relevant premises. It raises causes of action in both negligence and breach of contract. A Defence filed on behalf of both defendants admits that the first defendant, Hungry Jacks Pty Limited, was the occupier of the premises. Liability is denied, and contributory negligence asserted.

The Present Application

4 On 24 July 2009 the plaintiff filed a notice of motion seeking an order pursuant to s82 of the Civil Procedure Act 2005 (the Act), that the first and/or the second defendant pay to the plaintiff as part of his damages such amount as the Court deems appropriate.

5 In support of the application the plaintiff has sworn an affidavit annexing financial records and medical reports. Mr J Anderson, who appeared for the plaintiff on the application, also tendered a report prepared by…

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 Matouk v Hungry Jacks

Details

AGLC: Matouk v Hungry Jacks [2009] NSWSC 1176
Case: [2009] NSWSC 1176
Decision Date: 5 November 2009

CaseChat Overview and Summary

The plaintiff, Pierre Matouk, sought an interim payment of damages from Hungry Jacks Pty Limited and Competitive Foods Australia Pty Limited after an incident at a Hungry Jacks store in Warwick Farm, where he fell due to a collapsing seat. He sued for damages arising from the injuries he sustained in this fall. The first defendant admitted to being the occupier of the premises but denied liability and asserted contributory negligence. The plaintiff filed a notice of motion under Section 82 of the Civil Procedure Act 2005, seeking an interim payment of damages. The court had to determine whether the plaintiff would likely obtain judgment against the defendant for substantial damages if the proceedings went to trial. The court examined the evidence presented, including an affidavit from a civil and construction engineer, Mr Hugh Cowling, who highlighted the haphazard attachment methods of the cement seats to the steel mounting plates. The court concluded that the defendant had not conducted regular inspections, which would have likely prevented the accident. It was also evident that the plaintiff had suffered ongoing physical and psychological symptoms, which significantly affected his ability to work. The court found that the plaintiff's case on liability was strong and that he would likely recover substantial damages if the proceedings went to trial. Considering the plaintiff's financial need and the strength of his case, the court ordered the first defendant to pay the plaintiff an interim award of $35,000, with the costs of the application to be costs in the cause.

Orders