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Orcher v Bowcliff Pty Ltd

Orcher v Bowcliff Pty Ltd

Case [2012] NSWSC 1088 12 September 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Orcher v Bowcliff Pty Ltd [2012] NSWSC 1088
Hearing dates: 5-7 October 2010, 27 June-1 July 2011, 1-3 February 2012
Decision date: 12 September 2012
Jurisdiction: Common Law
Before: Harrison J
Decision:
1. Verdict for the plaintiff for $1,362,591.
2. Order the defendants to pay the plaintiff's costs.
3. Declare that, having regard to the extent of the fourth cross-defendant's responsibility for the plaintiff's loss and damage, it is just and equitable as between the parties to the fourth cross-claim that the fourth cross-defendant contribute 30 percent of the damages and costs which the plaintiff has become entitled to recover from the cross-claimants.
4. Grant liberty to all parties to apply on short notice for such orders or directions as may appear to be necessary with respect to any arithmetical aspects of my calculation of damages.

Catchwords: NEGLIGENCE - duty of care - patron of hotel injured when assaulted by employee of licensed premises outside hotel in the street - duty of occupier of licensed premises to patrons beyond the licensed premise - duty of security guards to patrons beyond the licensed premises
Legislation Cited: Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946
Liquor Act 2007
Security Industries Act 1997
Cases Cited: Adeels Palace Pty Ltd v Moubarek [2009] HCA 48; (2009) 239 CLR 420
Bowcliff Pty Ltd v QBE Insurance (Aust) Ltd; John James Orcher v QBE Insurance (Australia) Ltd [2011] NSWCA 18
Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91
Collingwood Hotel Pty Ltd v O'Reilly; Night Knowledge Security Pty Ltd v O'Reilly [2007] NSWCA 155
Cregan Hotel Management Pty Ltd v Hadaway [2011] NSWCA 338
Deatons Pty Ltd v Flew (1949) 50 SR (NSW) 50; (1949) 79 CLR 370
Desmond v Cullen [2001] NSWCA 238
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Laresu Pty Ltd v Clark [2010] NSWCA 180
New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
North Sydney Leagues Club Limited v Berecry [2002] NSWCA 154; (2002) Aust Torts Reports 81-657
Perkins v Redmond Co Pty Ltd [2007] NSWDC 147; (2007) 5 DCLR (NSW) 21
Portelli v Tabriska Pty Ltd [2009] NSWCA 17
Quintano v B W Rose Pty Ltd [2009] NSWSC 446
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330
Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2
Scott v Davis [2000] HCA 52; (2000) 204 CLR 333
Spedding v Nobles; Spedding v McNally [2007] NSWCA 29; (2007) 69 NSWLR 100
Sprod bnf v Public Relations Oriented Security Pty Ltd [2007] NSWCA 319; (2007) Aust Torts Reports 81-921
Sweeney v Boylan Nominees Pty…

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 Orcher v Bowcliff Pty Ltd

Details

AGLC: Orcher v Bowcliff Pty Ltd [2012] NSWSC 1088
Case: [2012] NSWSC 1088
Decision Date: 12 September 2012

CaseChat Overview and Summary

Orcher, a patron of a hotel, brought an action against Bowcliff, the occupier of the hotel, seeking damages for injuries sustained when he was assaulted by an employee of the hotel outside the premises. The case was heard in the Supreme Court of South Australia. The plaintiff contended that the defendant had a duty of care to protect him from foreseeable harm caused by the employee’s actions. The defendant argued that their duty of care was limited to the premises and that they had no obligation to protect the plaintiff outside the hotel.

The court was tasked with determining the extent of the defendant's duty of care towards the plaintiff beyond the licensed premises. Specifically, it had to consider whether the defendant owed a duty of care to the plaintiff for harm caused by the employee’s assault outside the hotel. The court also had to address whether the security guards employed by the defendant had any duty to protect the plaintiff from harm caused by the employee outside the premises.

In its judgment, the court held that the defendant did owe a duty of care to the plaintiff for harm caused by the employee’s actions outside the hotel. The court found that the defendant’s duty of care extended beyond the premises where the employee assaulted the plaintiff, and that the defendant should have reasonably foreseen the risk of harm to the plaintiff in the circumstances. The court further held that the security guards employed by the defendant had a duty to protect the plaintiff from harm caused by the employee outside the premises. The court concluded that the defendant’s failure to take reasonable steps to protect the plaintiff from harm caused by the employee’s actions amounted to a breach of duty, and that the plaintiff was entitled to recover damages for his injuries.

The court ordered the defendant to pay damages to the plaintiff for his injuries, costs and interest.

Orders