Tilden v Gregg

Case [2015] NSWCA 164


Court of Appeal
Supreme Court

New South Wales

Case Name: 

Tilden v Gregg

Medium Neutral Citation: 

[2015] NSWCA 164

Hearing Date(s): 

28 May 2015

Decision Date: 

16 June 2015

Before: 

McColl JA at [1]; 
Macfarlan JA at [2];
Meagher JA at [3]

Decision: 

1. Appeal dismissed.
2. The appellant pay any reasonably incurred disbursements and expenses recoverable by the first respondent as a litigant in person.
3. The appellant pay the second respondent’s costs of the appeal.

Catchwords: 

TORTS – occupier of licensed premises – where first respondent assaults appellant on premises – whether second respondent negligent in not informing staff of any need for increased supervision of first respondent – whether second respondent was negligent in failing to install a CCTV camera – whether such precautions would have prevented assault

DAMAGES – intentional torts – assault – assessment of extent of appellant’s injury – whether primary judge erred in not accepting appellant’s evidence – whether primary judge erred in not awarding aggravated and exemplary damages

Legislation Cited: 

Civil Liability Act 2002 (NSW), ss 3B, 5B, 5D, 15

Cases Cited: 

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
Fontin v Katapodis [1962] HCA 63; 108 CLR 177
Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1
Lamb v Cotogno [1987] HCA 47; 164 CLR 1
Lane v Holloway [1968] 1 QB 379
McGlen-McLeod v Galloway [2012] NSWCA 368
State of New South Wales v Zreika [2012] NSWCA 37

Category: 

Principal judgment

Parties: 

Ross Tilden (Appellant)
Rolland John Gregg (First Respondent)
Ettalong Memorial Bowling Club Ltd (Second Respondent)

Representation: 

Counsel:
R de Meyrick (Appellant)
R Cavanagh SC (Second Respondent)

Solicitors:
T D Kelly & Co (Appellant)
Lee & Lyons Lawyers (Second Respondent)

Other:
R J Gregg (First Respondent) (Self represented)

File Number(s): 

2014/178973

Publication Restriction: 

Nil

Decision under appeal: 

 Court or Tribunal: 

District Court of NSW

  Jurisdiction: 

Civil

  Date of Decision: 

26 May 2014

  Before: 

North DCJ

  File Number(s): 

2013/61073

[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.]

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 28 February 2010, the appellant was punched in the face by Mr Gregg (the first respondent) at the Ettalong Memorial Bowling Club. That event occurred after a period of verbal abuse by Mr Gregg and an offensive retort by the appellant.

The appellant brought proceedings for assault against Mr Gregg and for negligence against the second respondent as occupier and licensee of the premises. The appellant obtained summary judgment against the first respondent. North DCJ dismissed the claim against the second respondent, holding that the Bowling Club had not…

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Tilden v Gregg [2015] NSWCA 164
Case
[2015] NSWCA 164
Decision Date

CaseChat Overview and Summary

The appellant, Tilden, brought proceedings against the first respondent, Gregg, for assault, and against the second respondent, the licensee of the premises where the assault occurred, for negligence. The dispute concerned whether the second respondent owed a duty of care to the appellant and, if so, whether that duty was breached by failing to take certain precautions. The appeal was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the second respondent was negligent in failing to inform its staff of any need for increased supervision of the first respondent, and whether the second respondent was negligent in failing to install a CCTV camera on the premises. Additionally, the court considered whether the primary judge erred in assessing the appellant's damages for the assault, specifically in not accepting the appellant's evidence regarding the extent of his injury and in not awarding aggravated and exemplary damages.

The Court of Appeal found that the second respondent did not breach its duty of care to the appellant. The court reasoned that there was no evidence to suggest that the second respondent knew or ought to have known that the first respondent posed a risk of assault to other patrons, or that increased supervision was required. Furthermore, the court held that the failure to install a CCTV camera was not causative of the appellant's injuries, as it was unlikely that such a measure would have prevented the assault. Regarding damages, the court found no error in the primary judge's assessment of the appellant's injuries or in the decision not to award aggravated and exemplary damages.

Consequently, the appeal was dismissed. The appellant was ordered to pay the first respondent's reasonably incurred disbursements and expenses as a litigant in person, and to pay the second respondent's costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant pay any reasonably incurred disbursements and expenses recoverable by the first respondent as a litigant in person.

3. The appellant pay the second respondent’s costs of the appeal.

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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