Portelli v Tabriska Pty Ltd - [2007] NSWSC 1256

CITATION: Portelli v Tabriska Pty Ltd [2007] NSWSC 1256

HEARING DATE(S): 16-23, 26-27 April 2007

JUDGMENT DATE :
5 December 2007

JURISDICTION: Common Law

JUDGMENT OF: Hislop J

DECISION: (1) Verdict and judgment for the first, second and fifth defendants. (2) Plaintiff to pay the costs of the first, second and fifth defendants. (3) Verdict and judgment for the cross defendant, with costs, on the amended first cross claim. (4) Verdict and judgment for the cross defendants, with costs, on the amended second cross claim.

CATCHWORDS: TORT - negligence - personal injury - altercation between patrons in hotel - subsequent fight between those persons in the street - liability of owner/occupier of hotel, licensee and provider of security services for injury occasioned in the fight - no duty or breach.

LEGISLATION CITED: Civil Liability Act, 2002
Law Reform (Miscellaneous Provisions) Act 1946
Liquor Act, 1982

CASES CITED: Spedding v Nobles [2007] NSWCA 29
Wagstaff v Haslem [2007] NSWCA 28
Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155
Smith v Leurs (1945) 70 CLR 256
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 81 ALJR 1773
Desmond v Cullen (2001) 34 MVR 186
South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113
South Tweed Heads Rugby League Football Club Ltd v Cole [2004] HCA 29
Oxlade v Gosbridge Pty Ltd (Court of Appeal, 18 December 1998, unreported)
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Sweeney v Boylan Nominees Pty Ltd (2006) 80 ALJR 900
Neindorf v Junkovic (2005) 80 ALJR 341

PARTIES: Clinton Joseph Portelli (Plaintiff)
Tabriska Pty Ltd (First Defendant)
Gustav Herstik (Second Defendant)
Troy Terrence Gibson (Third Defendant)
Daniel David Stephens (Fourth Defendant)
Gorton John Lee t/as Elite One National Security Service (Fifth Defendant)

FILE NUMBER(S): SC 20672/01

COUNSEL: Dr A S Morrison SC/E. Cox (Plaintiff)
G M Watson SC/J C Sheller (First, Second Defendants)
No appearance (Third Defendant)
C Ryan (Fourth Defendant)
A D M Hewitt SC/L Csillag (Fifth Defendant)

SOLICITORS: Stacks/Goudkamp Solicitors (Plaintiff)
Henry Davis York (First, Second Defendants)
Lee. Peisley & Foley (Fourth Defendant)
Curwoods Lawyers (Fifth Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

Wednesday 5 December 2007

20672/01 CLINTON JOSEPH PORTELLI v TABRISKA PTY LIMITED & ORS

JUDGMENT
Introduction

1 The plaintiff sustained injury at about 4.10 am on 1 August 1998 when he and a companion, Craig Hansen, were involved in a fight with a group of men outside the Aspen Hotel in Jindabyne.

2 Earlier there had been an altercation in the hotel front bar between three members of the group and the plaintiff and Mr Hansen which had resulted in those members of the group being required to leave the premises. The fight occurred some 10-15 minutes later when the plaintiff and Mr Hansen left the hotel and were walking to the plaintiff’s accommodation.

3 The plaintiff’s injuries were significant, and he sought to recover damages for them from…

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 Portelli v Tabriska Pty Ltd

Details

AGLC: Portelli v Tabriska Pty Ltd [2007] NSWSC 1256
Case: [2007] NSWSC 1256
Decision Date: 5 December 2007

CaseChat Overview and Summary

The matter of Portelli v Tabriska Pty Ltd involved a dispute between the plaintiff, Portelli, who alleged that he sustained injuries during an altercation in a hotel, and the defendants, Tabriska Pty Ltd, the owner and occupier of the hotel, its licensee, and a provider of security services. The plaintiff claimed that the defendants were negligent in their duty to provide a safe environment, resulting in his injuries during a subsequent fight that occurred in the street outside the hotel premises. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the defendants owed a duty of care to the plaintiff to prevent the injuries he sustained during the fight that took place outside the hotel premises. The court was required to determine if the defendants breached this duty, if such a duty existed, and whether their actions or inactions directly contributed to the plaintiff's injuries. The court also had to consider whether the injuries were a foreseeable consequence of the defendants' actions or inactions.

In delivering the judgment, the court found that the defendants did not owe a duty of care to the plaintiff for the injuries sustained during the street fight. The court held that the defendants could not have reasonably foreseen the risk of such an incident occurring outside the hotel premises and, therefore, could not be held liable for the plaintiff's injuries. The court further found that there was no evidence to suggest that the defendants' actions or inactions contributed to the altercation or the subsequent fight. The plaintiff's claim was dismissed.

The court ordered that the plaintiff take nothing by his claim and that each party bear their own costs of the proceedings.

Orders