Australia: Warning To Insurers And Lawyers About Bringing Untenable Appeals - Non-Economic Loss - Apportionment Of Liability Between Occupiers Of Premises

Last Updated: 24 February 2009
Article by Olivia Dinkha

Bon Appetit Family Restaurant Pty Ltd V Patricia Mongey [2009] NSWCA 14
Beazley JA; Tobias JA and Basten JA

In Brief

The Court considered an appeal in respect of a trial judge's assessments of the apportionment of liability between an employer and another tortfeasor, and non-economic loss pursuant to s 16 of the Civil Liability Act 2002. This case provides a warning to insurers and their legal advisers about lodging appeals without reasonable prospects of success.


The plaintiff was employed as a beverage attendant at the Mount Pritchard & District Community Club Limited ("the Club"). On 6 July 2003 whilst carrying a heavy garbage bag through the kitchen area the plaintiff slipped on a wet and greasy patch on the floor near the service door, falling heavily on her back.

The kitchen area near where she fell was used by the defendant to provide catering services at the Club.

District Court Decision

The trial judge, Ashford DCJ, found in favour of the plaintiff and assessed damages in the sum of $345,622. Her Honour reduced the damages by 20% on account of the plaintiff's employer's liability pursuant to s 151Z(2) of the Worker's Compensation Act 1987, giving a judgment to the plaintiff in the amount of $276,497.60.

Her Honour assessed the plaintiff's non-economic loss at 30% of a most extreme case.

Court of Appeal Decision

On appeal the defendant challenged the trial judge's apportionment of 20% in respect of the plaintiff's employer's liability. The defendant submitted that the appropriate proportion should have been at least 50%.

Referring to his decision in Tarabay v Leite [2008] NSWCA 259, Basten JA who delivered the main judgment held that the apportionment of culpability amongst joint tortfeasors is not merely an evaluative judgment and involves the exercise of a discretionary power.

The defendant submitted that her Honour had erred in finding that the contractual arrangements between the defendant and the Club included a responsibility of the defendant to "clean up in the Restaurant service and dining areas and to take care of any spillages as and when they occur". The defendant submitted that the contract with the Club only required it to clean plant, equipment, fittings, fixings and chattels of the Club and not the floor areas it used. Basten JA held that to draw such a distinction between the two was implausible as a matter of common sense.

The defendant further submitted that it was not responsible for cleaning the area in which plaintiff fell, and that it was therefore not responsible for the plaintiff's injury. His Honour held that the facts established that the plaintiff slipped on the area near the service door and that the defendant was primarily responsible for keeping those areas clean and free from water and grease pursuant to the agreement with the Club.

Accordingly, Basten JA rejected this ground of appeal finding that no error had been established in respect of her Honour's understanding of the written agreement, nor in her assessment of the factual situation within the club.

The defendant secondly submitted that the primary judge erred in referring to the Court of Appeal decision in TNT Australia Pty Ltd v Christie [2003] NSWCA 47. The plaintiff's employer in that case was a labour hire company and apportionment of the employer's liability was held to be 25%. The defendant submitted that as the plaintiff's employer in the subject case was not a labour hire company it was not analogous to the circumstances in Christie.

Basten JA held that although her Honour had regard to the decision in Christie, her judgment appreciated that a factual assessment was required of circumstances of the case and that such an assessment depended upon the relationship between the Club and the defendant in relation to the state of the relevant floor area. It was held that if her Honour had regard to Christie it was merely to provide assistance in discussing how an approach to apportionment should be undertaken.

The defendant also appealed the trial judge's finding of 30% of a most extreme case in respect of non-economic loss. Basten JA noted the only specific error sought to be identified by the plaintiff referred to a comment by her Honour that "it may well be the plaintiff has some associated leg pain as a result of" aggravation of pre-existing degenerative changes in her back and neck. Her Honour then noted that there was no neurological component to those symptoms. Basten JA held that her Honour treated the evidence of the plaintiff in this respect as insignificant in her overall assessment of the seriousness of the injuries. Accordingly, Basten JA held that no factual error warranting intervention had been established by the defendant in this respect.

At trial the defendant submitted that the appropriate proportion of a most extreme case was either 24% or 25%, whilst the plaintiff submitted that 33% was the appropriate figure. His Honour held that the adoption of a figure between the two is of itself not reviewable unless based on an erroneous legal or factual premise. His Honour noted that given the relatively small range within which her Honour was invited to determine a figure, and the absence of any material factual or legal error, the challenge was untenable.


The determination of a percentage of a most extreme case and the apportionment of liability between an employer and another tortfeasor are not evaluative judgments and both involve the exercise of discretion. These assessments are only reviewable by an appellate court if there is a demonstrable error of fact or law.

This case highlights the importance of not adopting a cavalier attitude to lodging appeals. Tobias JA was scathing in his warning to insurers and their legal advisers about lodging untenable appeals: "These types of appeals, no doubt often generated by the claims managers of the relevant insurer, are to be discouraged. They are a waste of the Court's time and of its and the parties' resources". His Honour added that insurers should be put on notice that there is a real risk that these untenable appeals would be met with an order for indemnity costs in favour of the successful respondent. His Honour also drew attention to ss 345 and 348 of the Legal Profession Act 2004, which apply to legal practitioners despite any obligation or instructions they have from their clients.

This case is another example of the Court of Appeal's reluctance to overturn a primary judge's assessment of non-economic loss when that assessment falls within the range of a judge's exercise of discretion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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