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Rouvinetis v Varady

Rouvinetis v Varady

Case [2009] NSWSC 109 5 March 2009

Negligence

Duty of Care

Strike Out Application

Proceedings Dismissed

Tort Law

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CITATION: Rouvinetis v Varady & Ors [2009] NSWSC 109

HEARING DATE(S): 24 February 2009

JUDGMENT DATE :
5 March 2009

JUDGMENT OF: Schmidt AJ

CATCHWORDS: NEGLIGENCE - duty of care - strike out application - no reasonable cause of action - proceedings dismissed

LEGISLATION CITED: Civil Liability Act 2002
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] NSWCA 29
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125
Hackshaw v Shaw (1984) 155 CLR 614
Modbury Triangle Shopping Centre Pty Ltd v Anzil and Anor (2000) 205 CLR 254
Nguyen v Hiotis and City of Charles Sturt [2000] SASC 88
Smith v Leurs (1945) 70 CLR 256
Spedding v Nobles; Spedding v McNally [2007] NSWCA 29
Wagstaff v Haslem (2007) 69 NSWLR 1

PARTIES: Evangelos Rouvinetis - Plaintiff
Dr Margaret Varady - First Defendant
New South Wales Department of Education and Training - Second Defendant
State of New South Wales - Third Defendant

FILE NUMBER(S): SC 20354/08

COUNSEL: Plaintiff in person
Defendants - Mr M Fordham, counsel

SOLICITORS: Plaintiff - unrepresented
Defendants - Moray & Agnew

- 16 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

SCHMIDT AJ

Thursday, 5 March 2009

20354/08 EVANGELOS ROUVINETIS v MARGARET VARADY AND ORS

JUDGMENT

1 HER HONOUR: In August 2008, the plaintiff, Evangelos Rouvinetis, commenced proceedings against Dr Margaret Varady, the Principal of Sydney Girls High School and the New South Wales Department of Education and Training, seeking compensation of $1,000,000.00. In October Mr Rouvinetis amended his pleadings. By notice of motion of 23 October 2008, the defendants seek orders under Rule 13.4 of the Uniform Civil Procedure Rules 2005 dismissing the statement of claim upon which Mr Rouvinetis proceeds, or in the alternative, orders under Rule 14.28 of the Rules, that the claim be struck out.

2 Mr Rouvinetis' claims concern an alleged assault by security guards engaged by a third party to provide security at a function being conducted at the School.

3 The claims Mr Rouvinetis advances in the statement of claim under the Civil Liability Act 2002, are:

(1) NEGLIGENCE: The first defendant, as principal of the school approved a function in the PUBLIC school premises the 09/04/2008, which, time 20 45 00 or about incured(sic) ASSAULT, INJURIES, which are veryfied(sic) by medical reports of diagnosis attaches to this documents(sic).

Handcuffings, and illegal detainment, against the PLAINTIFF who is a senior respected member of the constituency and well known to the first defendant and the rest of the schools administrators, for no reason at all and no provocation, by armed private personal body guards, who were inappropriately brought in the PUBLIC school grounds.

(2) FAILING DUTY OF CARE: The first defendant failed duty of care in not providing safety and security…

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 Rouvinetis v Varady

Details

AGLC: Rouvinetis v Varady [2009] NSWSC 109
Case: [2009] NSWSC 109
Decision Date: 5 March 2009

CaseChat Overview and Summary

The case involved Rouvinetis as the plaintiff against Varady as the defendant. The dispute arose from a car accident where Rouvinetis alleged that Varady was negligent in causing the collision. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought damages for injuries sustained during the accident, which the defendant contested by claiming that Rouvinetis was equally at fault or that the injuries were pre-existing. The defendant sought to strike out the plaintiff's claim, arguing it had no reasonable prospect of success.

The legal issues before the court involved whether the plaintiff had established a prima facie case of negligence and if the defendant's strike-out application should succeed. The court needed to determine if the plaintiff's evidence could, on its face, substantiate the claim of negligence and if there were any procedural grounds for dismissing the case. The primary focus was on the adequacy of the plaintiff's evidence to establish a duty of care, breach, causation, and damages.

The court found that the plaintiff's evidence was insufficient to establish a prima facie case of negligence. The plaintiff's account of the accident lacked corroboration and was inconsistent with other evidence. The court held that there was no reasonable prospect that the plaintiff could prove the elements of negligence. The lack of sufficient evidence meant that the plaintiff's claim was not sustainable, and the defendant's application to strike out the proceedings was successful. Consequently, the court dismissed the plaintiff's claim, finding that it had no reasonable prospect of success.

Orders