Schuller v S J Webb Nominees Pty Ltd [2015] SASCFC 162


The appellant, while inebriated, fell from a chair on which she was dancing at the Port Broughton Sunnyside Hotel-Motel, suffering serious injury to her right leg. The appellant sued the respondent, as proprietors of the hotel, in negligence and for breach of statutory duty, claiming damages for her injuries. The appellant alleged the respondent was at fault for selling her too much alcohol and for failing to prevent her from dancing on the chair. A Judge of the District Court dismissed her claim, holding that the respondent did not owe the appellant a duty of care and that there was no relevant causative breach of duty. Further, in any event, the judge held that the respondent had made out the defence of voluntary assumption of risk. The judge apportioned liability, in the event that he was wrong as to liability, against the appellant 90/10 and assessed the appellant’s total damages in the amount of $129,380 plus any applicable interest.

Whether the respondent owed the appellant a duty of care and breached that duty of care. Whether the defence of voluntary assumption of risk had been made out. Whether it was appropriate to make a reduction in damages of 90% on account of the appellant’s contributory negligence. Whether the Judge erred in his assessment of non-economic loss, future economic loss, past voluntary services and future care. Whether award of damages was manifestly inadequate.

Held per Stanley J dismissing the appeal (Gray and Lovell JJ agreeing):

1. The High Court in C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 has held that, outside of exceptional cases, persons in the position of the proprietor and the licensee, while bound by important statutory duties in relation to the service of alcohol and the conduct of the premises in which it is served, owe no general duty of care at common law to customers which requires them to monitor and minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume.

2. This was not an exceptional case. The common law did not impose upon the respondent a duty of care to protect the appellant from causing harm to herself by undertaking activities in a state of inebriation which exposed her to the risk of injury. The judge did not err in finding that no duty of care existed.

3. In any event, even if there was such a duty owed by the respondent to the appellant, the judge was correct in finding the respondent was not in breach of the duty. The respondent, through its officers, exercised the reasonable care it owed the appellant.

4. Pursuant to sections 36 and 37 of the Civil Liability Act 1936 (SA), in order to establish the defence of voluntary assumption of risk, the respondent was required to prove that the appellant consciously adverted to the possibility that the risk of falling from the chair might eventuate and decided to dance on the chair while affected by alcohol regardless. That finding was open to the judge on the evidence.

5. The judge fell into error by purporting to apportion liability without identifying in what way the respondent was negligent.

6. There was no error in the approach taken by the judge in assessing the award for non-economic loss. However, the damages assessed in respect of future economic loss, past voluntary services and future care were inadequate. If the respondent were liable, the amount of the damages assessed by the judge should be substituted with an award of $191,810.

Civil Liability Act 1936 (SA) s 3(1), s 36, s 37, s 58(3); Civil Liability Act 2002 (NSW) s 5F, s 5G, referred to.

C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390, applied.

Freudenstein v Marhop Pty Ltd & Ors [2010] NSWSC 724; Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383, distinguished.

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469; O’Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464; Byrne v Australian Airlines (1995) 185 CLR 410; Papps v Police [2000] SASC 183; (2000) 77 SASR 210; Keith v Gal [2013] NSWCA 339; Whisprun Pty Ltd v Dixon (2003) 77 ALR 1598; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Roggenkamp v Bennett [1950] HCA 23; (1950) 80 CLR 292; Carey v Lake Macquarie City Council [2007] NSWCA 4; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; K-Generation Pty Ltd & Anor v Liquor Licensing Court & Anor [2009] HCA 4; (2009) 237 CLR 501; In Re an Appeal from Credit Tribunal by John Martin & Co Ltd (1974) 8 SASR 237; Thompson v Australian Capital Television Thompson (1994) 54 FCR 513; King v Philcox [2015] HCA 19; (2015) 89 ALJR 582; Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138; Packer v Cameron [1989] SASC 1948; (1989) 54 SASR 246; National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569; Burford v Steer (1984) 118 LSJS 139; Wade v Allsopp (1976) 10 ALR 353; Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Terry v Leventeris (2011) 109 SASR 358, considered.

David Cormack – Brisbane Barrister & Mediator

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