Tooth and Co Ltd T/As Mona Vale Hotel v Injac

Tooth and Co Ltd trading as Mona Vale Hotel (the appellant) appealed to the New South Wales Court of Appeal against a decision of the District Court of New South Wales. The dispute concerned the appellant's liability for injuries sustained by the respondent, Mr. Injac, who fell from a balcony at the Mona Vale Hotel. Mr. Injac alleged that the hotel was negligent in its maintenance of the balcony, specifically concerning the height of the balustrade.

The Court of Appeal was required to determine whether the appellant owed a duty of care to the respondent in relation to the height of the balcony balustrade and, if so, whether that duty was breached. The court also had to consider whether the respondent's own conduct contributed to his injuries, and if so, to what extent.

The Court of Appeal found that the appellant owed a duty of care to its patrons to ensure that the premises were reasonably safe. It held that the balustrade, being only 900mm high, was not of a sufficient height to prevent a person from falling over it, particularly in circumstances where patrons might be affected by alcohol or be in a state of excitement. The court applied the principles of negligence, considering the foreseeability of the risk of harm and the reasonableness of the precautions that ought to have been taken. While the court found the appellant negligent, it also determined that the respondent was contributorily negligent, having consumed a significant amount of alcohol and behaving in a boisterous manner, which contributed to his fall.

The appeal was allowed in part, with the damages awarded to the respondent being reduced by 50% to reflect his contributory negligence.