Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478 Hearing dates: 5, 6, 7 August 2013 Decision date: 23 December 2013 Before: McColl JA at [1];
Macfarlan JA at [2];
Tobias AJA at [4].Decision: Appeal 2012/310682
1. Appeal allowed.
2. Set aside the orders made by Harrison J on 12 September 2012 and 23 November 2012.
3. Verdict and judgment for the appellant (QBE Insurance (Australia) Limited).
4. The first respondent to pay the appellant's costs of the trial and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified.
Appeal 2012/310752
1. Appeal allowed.
2. Set aside the orders made by Harrison J on 12 September 2012 and 23 November 2012.
3. Verdict and judgment for the appellants (Bowcliff Pty Ltd trading as The Bridge Hotel Rozelle and Richard Francis Keough).
4. The first respondent to pay the appellants' costs of the trial and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: NEGLIGENCE - hotel patron assaulted across road from licensed premises by employee of hotel - employee not a security guard - evidence unclear as to whether assailant crossed road to intervene in dispute involving patron - non-intervention by employees of hotel and employees of security company - whether evidence sufficient to establish breach of duty
APPEALS - appellate review of findings of fact - inferences to be drawn from CCTV footageLegislation Cited: Civil Liability Act 2002 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Security Industries Act 1997 (NSW)
Suitors' Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW)Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Angel v Hawkesbury City Council [2008] NSWCA 130
Anikin v Sierra [2004] HCA 64; (2004) ALJR 452
Blacktown City Council v Hocking [2008] NSWCA 144
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649
Cregan Hotel Management Pty Ltd v Hadaway [2011] NSWCA 338
Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Kuru v New South Wales [2008] HCA 26; (2008) 236…
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- AGLC
- QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478
- Case
- [2013] NSWCA 478
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal were whether the hotel and its insurer had breached their duty of care to the patron. Specifically, the court considered whether the evidence was sufficient to establish that the hotel employee had crossed the road to intervene in a dispute involving the patron, and whether the hotel and its security company had failed to intervene appropriately. The court also reviewed the findings of fact made by the trial judge, particularly in relation to inferences drawn from CCTV footage.
The Court of Appeal allowed the appeals, setting aside the orders made by Harrison J. The court found that the evidence did not establish a breach of duty by the hotel or its insurer. The court's reasoning, while not detailed in the provided text, led to the conclusion that the appellant's (QBE and the hotel) were not liable. Consequently, the verdict and judgment were entered for the appellants, and the first respondent was ordered to pay their costs of the trial and the appeal.
Orders
Orders of the court
Appeal 2012/310682
1. Appeal allowed.
2. Set aside the orders made by Harrison J on 12 September 2012 and 23 November 2012.
3. Verdict and judgment for the appellant (QBE Insurance (Australia) Limited).
4. The first respondent to pay the appellant's costs of the trial and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified.
Appeal 2012/310752
1. Appeal allowed.
2. Set aside the orders made by Harrison J on 12 September 2012 and 23 November 2012.
3. Verdict and judgment for the appellants (Bowcliff Pty Ltd trading as The Bridge Hotel Rozelle and Richard Francis Keough).
4. The first respondent to pay the appellants' costs of the trial and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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