Whisprun Pty Ltd v Sams

NEW SOUTH WALES COURT OF APPEAL

CITATION: Kingsgrove RSL v Spasevski [2002] NSWCA 342

FILE NUMBER(S):
40192/02

HEARING DATE(S):    2 September 2002

JUDGMENT DATE:      12/12/2002

PARTIES:
Kingsgrove RSL Club Ltd
v
Gail Spasevski

JUDGMENT OF:        Handley JA Sheller JA Hodgson JA   

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     DC 1542/00

LOWER COURT JUDICIAL OFFICER:   Sorby DCJ

COUNSEL:
Appellant - J D Hislop QC/J C Chapman
Respondent - Paul Webb QC/P R Sternberg

SOLICITORS:
Appellant - McCulloch & Buggy
Respondent - Angelovski & Associates

CATCHWORDS:
NEGLIGENCE - breach of duty - causation - employer - employee

LEGISLATION CITED:
Supreme Court Act 1970 (NSW)

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40192/02
DC 1542/00

HANDLEY JA
SHELLER JA
HODGSON JA

12 December 2002

KINGSGROVE RSL CLUB LIMITED  v  GAIL SPASEVSKI

NEGLIGENCE – breach of duty – causation – employer – employee

The respondent was employed by the appellant as a bar stewardess in its bowling clubhouse.  Two armed men robbed the clubhouse while she was on duty.  She suffered post-traumatic stress disorder and had not worked since.  The respondent sued the appellant for breach of its duty of care as an employer.  There had been two earlier robberies at the clubhouse.  The trial Judge awarded her $350,152.60.

The appellant conceded that it owed a duty of care and that an armed robbery was reasonably foreseeable but challenged the findings of breach of duty and causation.

The appellant contended that even if there was an implicit finding of causation the trial Judge had failed to give adequate reasons and there should be a new trial.  It also submitted that there was no evidence that anything the club could have done would have prevented the third robbery.

HELD:    After the second robbery the club’s duty to its employees was to take reasonable steps to protect them from being injured as a result of a further robbery. As nothing was done to upgrade security the club was in breach of that duty and the Judge’s implicit finding on causation was open on the evidence.  There was no need to order a new trial for lack of reasons where no question of credibility arose and the evidence enabled the Court of Appeal to make the necessary findings.

ORDERS

Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40192/02
DC 1542/00

HANDLEY JA
SHELLER JA
HODGSON JA

12 December 2002

KINGSGROVE RSL CLUB LIMITED  v  GAIL SPASEVSKI

Judgment

1. HANDLEY JA:  For some years prior to August 1994 the respondent, Mrs Gail Spasevski, was employed by the appellant as a bar stewardess in its bowling clubhouse (the clubhouse) at 58 Mooresfield Road, Kingsgrove.  She worked shifts of 4½ to 5 hours from 3 in the afternoon to early evening.  The bowling club had formerly been independent but by 1989 it had ceased to be viable on its own and had amalgamated with the appellant which was a much larger club.