Youssef v Bevchain Pty Ltd

Case [2023] NSWDC 313

District Court


New South Wales

Medium Neutral Citation: Youssef v Bevchain Pty Ltd [2023] NSWDC 313
Hearing dates: 24, 25, 27, 28 July, 11 August 2023
Decision date: 18 August 2023
Jurisdiction:Civil
Before: Newlinds SC DCJ
Decision:

1. Verdict for the plaintiff.

2. Direct the parties to bring in short minutes of orders to give effect to these reasons (para [182])

Catchwords:

NEGLIGENCE – risk of harm – causation – conflicting medical opinions – legal causation – proper construction of sections 106 and 107 of the National Disability Insurance Scheme Act 2013 – egg shell skull test

Legislation Cited:

Civil Liability Act 2002, Division 2, Part 1A, ss 5B, 5B(1), 5B(2), 5D, 5R, 32

Motor Accidents Compensation Act 1999 (NSW), ss 3,3A,3B(1)(b),112, 127, 138(3)

National Disability Insurance Scheme Act 2013, ss 104, 105, 105A, 105B, 106(b),106(c), 106(2), 107

Cases Cited:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, [2009] HCA 48

Chester v Waverley (1939) 62 CLR 1

Dovuro Pty Ltd v Wilkins (2003) 205 CLR 317

Dulieu v White & Sons [1901] 2 KB 669

James v USM Events Pty Ltd [2022] QSC 63

Knight v Maclean [2002] NSWCA 314

Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95

Overseas Tank Ship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 3

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Sharp v Home Care Service of New South Wales (2018) NSWSC 1319

Strong v Woolworths Limited (2012) 246 CLR 182

Tabet v Gett [2010] HCA 12

Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited [2022] HCA 11

Towers v Hevilift Ltd [2020] QSC 77

Uniting Church of Australia Property Trust (New South Wales) v Miller 91 NSWLR 752

Texts Cited:

Luntz, Assessment of Damages for Personal Injury and Death, 5th Ed (710 – 177).

Category:Principal judgment
Parties: Noubar Youssef (plaintiff)
Bevchain Pty Ltd (ACN 118 481 773) (defendant)
Representation:

Counsel:
A Campbell (plaintiff)
J Ryan (defendant)

Solicitors:
Robert Bryden Lawyers (plaintiff)
Holman Webb Lawyers (defendant)
File Number(s): 2018/339305
Publication restriction: None

JUDGMENT

Introduction

  1. HIS HONOUR: By a second further amended statement of claim filed in Court at the commencement of the hearing on 24 July 2023 the plaintiff claims damages from the defendant pursuant to the Motor Accidents Compensation Act 1999 (NSW).

  2. The plaintiff’s case is that whilst employed by a related corporation of the defendant he was driving a forklift at the Tooths Brewery site at Auburn on 17 November 2015 when he was involved in a collision with another forklift driven by a fellow employee, Mr Kevin Faitua (“the incident”).

  3. It is accepted by the defendant that the relationship between Mr Faitua and the defendant gave rise to the statutory agency created by s 112 of the Motor Accidents Compensation Act and therefore if Mr Faitua was negligent in a way that caused the incident, which in turn caused the injuries and ongoing symptoms the…

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AGLC
Youssef v Bevchain Pty Ltd [2023] NSWDC 313
Case
[2023] NSWDC 313
Decision Date

CaseChat Overview and Summary

In the case of Youssef v Bevchain Pty Ltd, the plaintiff alleged that the defendant's negligence caused her to suffer physical and psychiatric harm following an incident that occurred at a restaurant operated by the defendant. The case was heard in the Supreme Court of Victoria. The plaintiff claimed that the defendant failed to provide a safe environment, resulting in her sustaining injuries that exacerbated her pre-existing medical conditions.

The court was required to determine whether the defendant breached its duty of care, whether the injuries suffered by the plaintiff were a direct result of that breach, and whether the plaintiff's pre-existing conditions were a factor in the causation of her injuries. The court also had to consider the proper interpretation of sections 106 and 107 of the National Disability Insurance Scheme Act 2013, and the applicability of the egg shell skull rule in this context.

The court found that the defendant breached its duty of care by failing to ensure the safety of its customers. The court also determined that the plaintiff's injuries were a direct result of the defendant's negligence, applying the egg shell skull rule to account for the plaintiff's pre-existing conditions. The court further concluded that the provisions of the National Disability Insurance Scheme Act 2013 did not exclude or limit the defendant's liability for the plaintiff's injuries. Based on these findings, the court awarded damages to the plaintiff.

The court ordered that a verdict be entered in favour of the plaintiff, and directed the parties to bring in short minutes of orders to give effect to these reasons. The defendant was also ordered to pay the plaintiff's costs of the proceeding.

Orders

Orders of the court

1. Verdict for the plaintiff.

2. Direct the parties to bring in short minutes of orders to give effect to these reasons (para [182])

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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