Wormald v Schintler - [1992] QCA 311

IN THE COURT OF APPEAL

[1992] QCA 311

QUEENSLAND

Appeal No. 22 of 1992

BETWEEN:

PETER CHARLES WORMALD

(Plaintiff) Appellant

- and -

GORDON ROBERTSON

(First Defendant)

- and -

JOSEPH KARL SCHINTLER

First

(Second Defendant) Respondent

- and -

AUSSIE PUBS PTY. LIMITED

Second

(Third Defendant) Respondent

JUDGMENT OF THE COURT

THE CHIEF JUSTICE
DAVIES JA

AMBROSE J

Delivered the 23rd day September, of 1992.

The plaintiff sued the two respondents and one Robertson for damages for personal injuries he sustained as a result of an incident in the Argent Hotel in Mount Isa. In this appeal we are concerned only with the position of the two respondents, Schintler, the manager and licensee of the hotel, and Aussie Pubs Pty. Limited, the licensed owner.

The learned trial judge, after finding a number of facts in the plaintiff's favour in his claim against the two respondents, went on to find that relevant acts and omissions for which they were responsible had not been causative of the injury to the plaintiff. It may be mentioned that the responsibility of the second respondent, the hotel owner, if it was to arise at all, would have been purely vicarious.

Issues which were particularly relevant for consideration were the existence or otherwise of a common law duty of care, breach of that duty, the question whether the damage which the plaintiff suffered was a consequence of that breach and, finally, contributory negligence and volenti. The trial judge considered also the question of a statutory duty of care owed to the plaintiff and said to arise under s. 78 of The Liquor Act 1912. A statutory duty of care existed, His Honour found, but it was not sufficient to entitle the plaintiff to succeed because, as was the case with the common law duty, the breach of it had not caused the loss. In short, under both headings the plaintiff's claim failed on the issue of causation.

A statement should be made of the essential facts.
At about 11.30 p.m. on 31 July, 1987 the first

defendant struck the plaintiff in the face and head with a glass beer jug. This occurred in the course of a function in the respondents' hotel, at which a considerable number of patrons, members and guests of a football club were present.

The principal allegations made against the respondents were in effect that the first respondent, Schintler, ought, in the situation that prevailed, to have acted to exercise control, employing his own staff for that purpose. It is said that he should have imposed some discipline upon Robertson who had been causing trouble, ejecting him from the hotel if necessary either with or without the aid of police.

The trial judge found that Robertson had been misbehaving for an hour or more prior to the assault upon the plaintiff. He had jumped on tables in the lounge where the function was being held, caused breakage of glass and had been molesting other patrons there present. Two particular complaints…

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 Wormald v Schintler

Details

AGLC: Wormald v Schintler [1992] QCA 311
Case: [1992] QCA 311
Decision Date: 23/09/1992

CaseChat Overview and Summary

In the case of Wormald v Schintler, the appellant, Peter Charles Wormald, sought damages for personal injuries sustained during an incident at the Argent Hotel in Mount Isa. The respondents, Joseph Karl Schintler and Aussie Pubs Pty. Limited, were the manager and licensee of the hotel, and the licensed owner respectively. The central issue before the Court of Appeal was whether the respondents were liable for the injuries caused by the first defendant, Gordon Robertson, who assaulted the plaintiff with a glass beer jug. The Court had to decide on the existence and breach of a duty of care, the causation of the plaintiff's injuries, and issues of contributory negligence and volenti non fit injuria.

The Court found that the trial judge had correctly identified the existence of a duty of care and a breach of that duty by the respondents. However, the trial judge had erred in finding that the respondents' negligence did not cause the plaintiff's injuries. The Court held that the respondents' failure to take reasonable steps to control Robertson's disruptive behaviour was a causative factor in the plaintiff's injuries. The Court disagreed with the respondents' reliance on the "but for" test of causation, finding that the respondents' negligence and the statutory breach were indeed causes of the plaintiff's loss. The Court also noted that the plaintiff's actions did not constitute an intervening act that broke the chain of causation.

The Court allowed the appeal, set aside the judgment of the trial court, and ordered that judgment be entered in favour of the plaintiff for $23,721.00. The respondents were further ordered to pay the appellant's costs of the proceedings below and of the appeal. The Court did not find it necessary to decide on the issue of statutory breach, given its findings on causation and liability under common law.

Orders