BON APPETIT FAMILY RESTAURANT PTY LTD v Patricia MONGEY [2009] NSWCA 14

New South Wales Court of Appeal

CITATION: BON APPETIT FAMILY RESTAURANT PTY LTD v Patricia MONGEY [2009] NSWCA 14

HEARING DATE(S): 11 February 2009 JUDGMENT OF: Beazley JA at 1; Tobias JA at 2; Basten JA at 4

EX TEMPORE JUDGMENT DATE: 11 February 2009

DECISION: Appeal dismissed with costs.

CATCHWORDS: APPEAL – challenge to assessment of non-economic loss – challenge to apportionment of culpability – no material factual or legal error - COSTS – indemnity basis – warning to insurers and legal counsel about bringing untenable appeals - TORTS - negligence – apportionment of liability between occupiers of premises –contractual arrangement between parties as to cleaning responsibilities – whether area of plaintiff's fall separate to areas which restaurant had to clean - TORTS – damages – non-economic loss – assessment of severity of plaintiff's injuries – absence of significant factual or legal error – Civil Liability Act 2002 (NSW), s 16 - TORTS – hypothetical assessment of employer's liability – reduction of damages recoverable from third party tortfeasor – Workers Compensation Act 1987 (NSW), s 151Z(2)

LEGISLATION CITED: Civil Liability Act 2002 (NSW), s 16 Workers Compensation Act 1987 (NSW), ss 151A, 151H, 151Z

CATEGORY: Principal judgment

Owners – Strata Plan 156 v Gray [2004] NSWCA 304 CASES CITED: Tarabay v Leite [2008] NSWCA 259 TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1

PARTIES: Bon Appetit Family Restaurant Pty Ltd (Appellant) Patricia Mongey (Respondent)

FILE NUMBER(S): CA 40139/08

COUNSEL: D S Weinberger (Appellant) S Norton SC/P N Khandhar (Respondent)