Appeal Outcome: Special leave dismissed with costs by the High Court, 3 November 2009 s54/2009
New South Wales
Court of Appeal
CITATION: Portelli v Tabriska Pty Ltd & Ors [2009] NSWCA 17 HEARING DATE(S): 21 October 2008
JUDGMENT DATE:
17 February 2009JUDGMENT OF: Allsop P at 1; Hodgson JA at 73; Macfarlan JA at 74 DECISION: Appeal dismissed with costs. CATCHWORDS: TORTS – negligence – duty of care – publicans and security firms – previous altercation between patrons on premises – whether duty of care is owed with regards to later altercations between patrons occurring off the premises – need for apprehension of risk to the patrons - EVIDENCE – rejection of evidence of a witness – failure to deal with written statement of witness who gives oral evidence–inferences to be drawn from failure to call a witness LEGISLATION CITED: Liquor Act 1982 (NSW) CATEGORY: Principal judgment CASES CITED: Brandi v Mingot (1976) 12 ALR 551
Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180; 3 VR 447
Cole v South Tweed Heads Rugby League Football Club Limited [2004] HCA 29; 217 CLR 469
Collingwood Hotel Pty Limited v O'Reilly [2007] NSWCA 155
De Groot v The Nominal Defendant [2005] NSWCA 61
Desmond v Cullen [2001] NSWCA 238; 34 MVR 186
Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; 211 CLR 540
Jones v Dunkel (1959) 101 CLR 298
Lanahmede Pty Limited v Koch [2004] SASC 204
Manly Council v Byrne [2004] NSWCA 123
Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61; 205 CLR 254
NSW Bar Association v Meakes [2006] NSWCA 340
Oxlade v Gosbridge Pty Limited [1998] NSWCA 167
Payne v Parker [1976] 1 NSWLR 191
Roads and Traffic Authroity of New South Wales v Dederer [2007] HCA 42; 234 CLR 330
Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2
South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; 55 NSWLR 113
Spedding v Nobles [2007] NSWCA 29
TAB Ltd v Atlis [2004] NSWCA 322
Wagstaff v Haslem [2007] NSWCA 28PARTIES: Clinton Joseph Portelli
Tabriska Pty Ltd
Gustav Herstik
John Lee Gorton trading as Elite One National Security ServiceFILE NUMBER(S): CA 40897/2007 COUNSEL: A S Morrison SC, E G H Cox (Appellant)
G Watson SC, J Sheller (First and Second Respondents)
A Hewitt SC, Mr S Maybury (Third Respondent)SOLICITORS: Stacks/Goudkamp (Appellant)
Henry Davis York (First and Second Respondents)
Curwood Lawyers (Third Respondents)LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): 20672/01 LOWER COURT JUDICIAL OFFICER: Hislop J LOWER COURT DATE OF DECISION: 5 December 2007
CA 40987/2007
17 February 2009ALLSOP P
HODGSON JA
MACFARLAN JA
PORTELLI v TABRISKA PTY LTD & ORS
Headnote
[This is not to be read as part of the judgment]
The appellant (the plaintiff below) was seriously injured by blows and kicks to the head in a fight which occurred in a public street in Jindabyne.
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Details
- AGLC
- Portelli v Tabriska Pty Ltd [2009] NSWCA 17
- Case
- [2009] NSWCA 17
- Decision Date
CaseChat Overview and Summary
The appeal in *Portelli v Tabriska Pty Ltd* concerned a claim in negligence brought by the appellant against the respondent, a licensed venue operator. The dispute arose from injuries sustained by the appellant during an altercation with another patron that occurred off the respondent's premises, shortly after both had left the venue. The appellant alleged that the respondent owed a duty of care to prevent such harm.
The central legal issues before the Court of Appeal were whether the respondent owed a duty of care to the appellant in relation to the later altercation that occurred off the premises, and whether the respondent had breached any such duty. The court also considered the admissibility and weight of certain evidence, including the rejection of evidence from a witness and the inferences to be drawn from the failure to call a particular witness.
The Court of Appeal reasoned that for a duty of care to arise in this context, there needed to be an apprehension of risk to the patrons. The court found that the evidence did not establish that the respondent ought to have foreseen the risk of an altercation occurring off the premises, particularly given the time lapse and the location of the subsequent incident. The court applied principles of negligence concerning the scope of a duty of care owed by publicans and security firms, emphasizing the need for a foreseeable risk of harm. The court also addressed the evidentiary issues, concluding that the trial judge had not erred in rejecting certain evidence or in the inferences drawn from the conduct of the parties regarding witness testimony.
The appeal was dismissed with costs.
The central legal issues before the Court of Appeal were whether the respondent owed a duty of care to the appellant in relation to the later altercation that occurred off the premises, and whether the respondent had breached any such duty. The court also considered the admissibility and weight of certain evidence, including the rejection of evidence from a witness and the inferences to be drawn from the failure to call a particular witness.
The Court of Appeal reasoned that for a duty of care to arise in this context, there needed to be an apprehension of risk to the patrons. The court found that the evidence did not establish that the respondent ought to have foreseen the risk of an altercation occurring off the premises, particularly given the time lapse and the location of the subsequent incident. The court applied principles of negligence concerning the scope of a duty of care owed by publicans and security firms, emphasizing the need for a foreseeable risk of harm. The court also addressed the evidentiary issues, concluding that the trial judge had not erred in rejecting certain evidence or in the inferences drawn from the conduct of the parties regarding witness testimony.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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