Schuller v S J Webb Nominees Pty Ltd - [2015] SASCFC 162

Supreme Court of South Australia
(Full Court: Civil)
SCHULLER v S J WEBB NOMINEES PTY LTD
[2015] SASCFC 162
Judgment of The Full Court
(The Honourable Acting Chief Justice Gray, The Honourable Justice Stanley and The Honourable Justice Lovell)
12 November 2015
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - OCCUPIERS
TORTS - THE LAW OF TORTS GENERALLY - GENERAL PRINCIPLES - VOLENTI NON FIT INJURIA
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - GENERAL PRINCIPLES
The appellant, while inebriated, fell from a chair on which she was dancing at the Port Broughton Sunnyside Hotel-Motel, suffering serious injury to her right leg. The appellant sued the respondent, as proprietors of the hotel, in negligence and for breach of statutory duty, claiming damages for her injuries. The appellant alleged the respondent was at fault for selling her too much alcohol and for failing to prevent her from dancing on the chair. A Judge of the District Court dismissed her claim, holding that the respondent did not owe the appellant a duty of care and that there was no relevant causative breach of duty. Further, in any event, the judge held that the respondent had made out the defence of voluntary assumption of risk. The judge apportioned liability, in the event that he was wrong as to liability, against the appellant 90/10 and assessed the appellant’s total damages in the amount of $129,380 plus any applicable interest.
Whether the respondent owed the appellant a duty of care and breached that duty of care. Whether the defence of voluntary assumption of risk had been made out. Whether it was appropriate to make a reduction in damages of 90% on account of the appellant’s contributory negligence. Whether the Judge erred in his assessment of non-economic loss, future economic loss, past voluntary services and future care. Whether award of damages was manifestly inadequate.
Held per Stanley J dismissing the appeal (Gray and Lovell JJ agreeing):
1. The High Court in C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 has held that, outside of exceptional cases, persons in the position of the proprietor and the licensee, while bound by important statutory duties in relation to the service of alcohol and the conduct of the premises in which it is served, owe no general duty of care at common law to customers which requires them to monitor and minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume.
2. This was not an exceptional case. The common law did not impose upon the respondent a duty of care to protect the appellant from causing harm to herself by undertaking activities in a state of inebriation which exposed her to the risk of injury. The judge did not err in finding that no duty of care existed.
3. In any event,…

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.

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Details

Case: [2015] SASCFC 162
Decision Date: 12 November 2015

CaseChat Overview and Summary

The appellant, Ms. Schuller, appealed to the Full Court of the Supreme Court of South Australia against a decision of a District Court judge who had dismissed her claim for damages for personal injuries sustained at the Port Broughton Sunnyside Hotel Motel, operated by the respondent, S J Webb Nominees Pty Ltd. Ms. Schuller alleged negligence on the part of the hotel, arguing that it owed her a duty of care which it breached, leading to her fall and subsequent injuries. The appeal concerned both the finding of liability and the quantum of damages.

The central legal issues before the Full Court were whether the respondent breached its duty of care to the appellant, and if so, whether the appellant's injuries were caused by that breach. The court also considered the appellant's level of intoxication and her conduct within the hotel, including whether the doctrine of *volenti non fit injuria* applied, and the assessment of damages should the appeal on liability have succeeded.

The Full Court, in dismissing the appeal, upheld the trial judge's findings of fact. The trial judge had expressed significant reservations about the appellant's credibility, preferring the evidence of other witnesses and medical records where discrepancies arose. The judge found that the appellant, who was on OxyContin for back pain, became more intoxicated than her consumption of three schooners would suggest, potentially due to others buying her drinks or the interaction of her medication with alcohol. Despite being warned twice by the bar manager, Mr. Simpson, about getting on chairs to dance, and being given a final warning, the appellant again climbed onto a chair in the saloon bar later that evening. Although service of alcohol had been ceased, and she was told she was being ejected from the hotel by another barman, Mr. Sheldon, she continued to dance and subsequently fell, sustaining injuries. The court concluded that the respondent had taken reasonable steps to manage the appellant's behaviour and intoxication, including ceasing alcohol service and attempting to remove her from the premises, and therefore had not breached its duty of care.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant appeals both on liability and quantum. The appellant’s evidence The trial judge held serious reservations about the credibility and reliability of the appellant’s evidence. He concluded that, wherever the evidence of the appellant conflicted with the evidence of other witnesses in the case or medical records, the evidence of those other witnesses or records was to be preferred. This assessment is particularly significant to the damages appeal. Judge’s findings of fact The judge made the following findings of fact:[1]On the evening in question the plaintiff went to the Port Broughton Sunnyside Hotel Motel at around 9pm. The saloon bar area featured live music, and after the meal service concluded in the hotel at around that time, a musical duo was set up in the corner of the moderately sized saloon bar. The room was a standard, carpeted room that one might find in innumerable hotels. It had four or five square moderately sized tables with accompanying chairs. These had been or were moved to the sides of the room to clear an open space in front of the band to allow patrons to dance if they wanted to.After the plaintiff arrived at the hotel, over the course of the next hour or two she purchased three schooners of beer. She spent a lot of her time outside in the beer garden with friends where she could also smoke. It is not clear whether she was bought any alcohol by others during the course of the evening. The plaintiff was on OxyContin for her back pain. That is a strong painkiller, which has the potential to have affect together with alcohol. For some reason, possibly others buying her drinks, possibly due to her medication in combination with alcohol, or possibly for some other reason, the plaintiff became more intoxicated than the number of beers she herself purchased would alone have been responsible for.Over the course of the evening the plaintiff would periodically come in from the beer garden to listen to the band playing in the saloon bar, and would also dance to the music. At some point she got up on a chair to dance, and was immediately told by Mr Simpson the bar manager to get down, which she did. Half to three quarters of an hour later she did it again. Mr Simpson saw her and immediately yelled at her to get down, intending to convey that he was starting to be annoyed at her behaviour, and went to approach where she was, however the plaintiff immediately got down from the chair before he arrived.Mr Simpson took her aside to give her a ‘first and final warning’ about her conduct, intending to convey thereby that if she did it again she would be excluded from the hotel. While doing that he noticed that she was more intoxicated than he thought was appropriate so he determined to cease service of alcohol to her. To ensure this occurred he informed Mr Sheldon, the only other barman there at that stage. That in fact occurred, as the plaintiff later tried to purchase a further drink but was refused service by Mr Sheldon. Mr Sheldon offered the plaintiff water, which she refused, and she walked back out to the beer garden.Later in the evening, between 12.00 and 12.30, the plaintiff was again in the saloon bar area listening to the band, and decided to get up on a chair again. The moment she did the barman Mr Sheldon approached her and told her to get down, and told her she was kicked out of the pub, but she ignored him, continued to dance, and moments later fell, injuring herself.[1] Schuller v S J Webb Nominees P/L [2014] SADC 178 at [64] – [70]. Approach on appeal

Decision

Reasons for decision

GRAY ACJ (dissent) LOVELL J (dissent)

If I had found the respondent liable to the appellant for her injuries, I would have set aside the amount of the damages assessed by the judge and substituted an award of $191,810. Conclusion I would dismiss the appeal. I would hear the parties as to costs. I would dismiss the appeal. I agree with the reasons of Stanley J.

Ratio Decidendi

Legal Principle Established

Established by:

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