OXLADE v GOSBRIDGE PTY LTD [1998] NSWCA 167

OXLADE v GOSBRIDGE PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHEPPARD and FITZGERALD AJA 28 September 1998, 18 December 1998

[1998] NSWCA 167

OCCUPIER'S liability; appellant harassed by hotel patrons in car park, struck patron with motor vehicle; consideration of whether the presence of security personnel would have prevented the accident; Per Mason P and Sheppard AJA (Fitzgerald AJA in dissent): occupier liable.

Mason P The appellant left the respondents' hotel at closing time. She had not consumed any alcohol and she was unaccompanied. Her car was parked close to the entrance to the hotel in its carpark. There were up to 40 other patrons in the area, several of them intoxicated and aggressive.

The appellant was harassed after she entered her car. Some men banged on the windows calling out names and vulgarities. Others climbed onto the bonnet. The appellant was scared, and she reversed out of the immediate area as quickly as she could. In doing so she collided with Mr Parrish and injured him. She has been held liable to him in negligence, under a consent judgment, in the sum of $80,000 inclusive of costs.

By this appeal the appellant seeks contribution from the respondents. The first respondent owned the hotel, the second and third respondents were its lessees, and the third respondent was its licensee. For the purposes of the appeal, no attempt was made to differentiate between them. It is submitted that the respondents were tortfeasors who, if sued by Mr Parrish, would have been found liable for his injuries caused directly at the hands of the appellant. The appellant seeks contribution as to one-third of the $80,000 consent judgment (being a sum found to have been reasonable).

The judgment of Fitzgerald AJA, which I have had the advantage of reading, demonstrates why the appellant's fear was generated by the conduct of the boisterous and offensive departing patrons, and why it materially contributed to the inattentive driving which injured Mr Parrish.