Joanne Denny v Yamba Shores Tavern Pty Ltd T/as Yamba Shores Tavern [2012] NSWDC 240

District Court New South Wales

Medium Neutral Citation: Joanne Denny v Yamba Shores Tavern Pty Ltd T/as Yamba Shores Tavern [2012] NSWDC 240 Hearing dates: 19 November 2012- 22 November 2012 Decision date: 23 November 2012 Before: Murrell SC DCJ Decision: Judgment for the defendant. Catchwords: TORTS- negligence- proof of negligence- weight and credibility of evidence- passenger on courtesy bus- passenger standing- passenger intoxicated- sudden acceleration- wrist injury- economic loss- domestic care Category: Principal judgment Parties: Joanne Denny (plaintiff) Yamba Shores Tavern Pty Ltd (defendant) Representation: David Elliot (plaintiff) William Fitzsimmons (defendant) Gerard Malouf & Partners (plaintiff) Holman Webb Lawyers (defendant) File Number(s): 2010/00376905

Judgment 1The plaintiff alleges that, on 27 February 2009, she was travelling as a standing passenger on the Yamba Shores Tavern courtesy bus. When the bus accelerated suddenly, she fell and fractured her left wrist. The Tavern concedes that, if the plaintiff's allegations are true, then the Tavern was negligent. In the circumstances alleged, the Tavern permitted intoxicated passengers to stand when the bus was not designed to carry standing passengers, and the standing passengers had no warning of the impending lurch. However, the Tavern disputes the plaintiff's allegations. 2The success of the plaintiff's claim depends upon the Court accepting her evidence and that of her husband. They gave evidence to the effect that, on 27 February 2009, they drank for several hours at the Tavern. The plaintiff became moderately intoxicated. They decided to travel home on the Tavern's courtesy bus. Mr Koolloos, a Tavern employee, drove the bus. The bus was full. The plaintiff and her husband were obliged to stand in the aisle, as were four to eight other passengers. There were no handgrips for standing passengers. After dropping the first passenger, the courtesy bus accelerated or jerked forward suddenly, causing the plaintiff to fall backwards. She tried to break the fall with her left (dominant) hand. Mr Koolloos stopped the bus and asked after the plaintiff's welfare. The plaintiff and her husband stated that she was "okay" or "in a bit of pain". The plaintiff sustained a displaced fracture to the left distal radius with probable articular involvement. 3Mr Koolloos gave evidence that he always enforced the Tavern's policy that patrons must be seated when the courtesy bus was moving. If seats were unavailable, patrons were required to wait for a later drop off. On the night in question, the plaintiff was seated towards the rear of the bus. As he stopped the bus to permit the plaintiff and her husband to disembark, his attention was drawn to the rear of the aisle, where the plaintiff had fallen backwards onto her buttocks. Her legs were parted inelegantly. The plaintiff made no complaint of injury.