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

11 February 2009 BON APPETIT FAMILY RESTAURANT PTY LTD v Patricia MONGEY Judgment 1 BEAZLEY JA: I agree with the reasons of Justice Basten and with the additional comments of Justice Tobias. I would add that I also, when giving consideration to this appeal, was concerned whether it was an appropriate case for the Court to exercise its discretion and to award indemnity costs. However, as there is no material before the Court to suggest that the appellant might have been on notice of this, I do not consider it would be appropriate on this occasion that such an order be made but, as I have indicated, I endorse the comments of Justice Tobias. Accordingly, the orders of the Court are that the appeal is dismissed with costs. 2 TOBIAS JA: I agree with the orders proposed by Justice Basten and with his reasons but wish to add the following. In my view the appellant's challenges to the findings of the primary judge were untenable. If leave to appeal had been required in this case it would, in my view, have been refused out of hand. 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. 3 Insurers should be put on notice that there is a real risk that these untenable appeals will be visited with an order for indemnity costs in favour of the successful respondent. Furthermore, I draw the attention of the legal advisers of insurers to the provisions of Division 10 of Part 3.2 of the Legal Profession Act 2004 and, in particular, ss 345 and 348. I note that s 345(3) provides that the obligations under Division 10 are to apply to a legal practitioner despite any obligation that practitioner may have to act in accordance with the instructions or wishes of his or her client. That Division extends to legal services in connection with proceedings by way of appeal in this Court (see s 344(1)). 4 BASTEN JA: In July 2003 Ms Patricia Mongey ("the plaintiff") was employed as a beverage attendant working in the bar of the Mount Pritchard & District Community Club Ltd ("the Club"). Her duties included removing empty drink bottles from the bar area to the dock area. Shortly after closing time on the evening of 6 July 2003 she was engaged in this activity, carrying a heavy garbage bin through the kitchen area, with the help of a fellow employee, when she slipped on a wet and greasy patch on the floor near the service door, falling heavily on her back. 5 The kitchen area near which she fell was used by the appellant to provide catering services at the Club. The plaintiff brought proceedings for personal injury damages against the appellant. She was successful in proceedings in the District Court, obtaining a judgment in her favour in the amount of $276,497.60. 6 The Restaurant has appealed from the judgment of Ashford DCJ on two grounds. The first concerns apportionment of responsibility between the plaintiff's employer (the Club) and the appellant; the second challenge is to her Honour's assessment of the severity of the plaintiff's injuries, for the purposes of determining non-economic loss, at 30% of a most extreme case. Apportionment of responsibility 7 The plaintiff did not take proceedings against her employer being, perhaps mindful of the effect of recovering damages from her employer on her entitlements to compensation or of the difficulty in meeting the statutory requirements: see Workers Compensation Act 1987 (NSW) ("the Act"), ss 151A and 151H. Nevertheless, the potential liability of an employer is relevant to the damages recoverable from a third party tortfeasor. Part 5, Div 3 of the Act imposes limitations on the recovery of common law damages from an employer. It is usual, therefore, for damages payable by an employer to be less than those payable by another tortfeasor under the general law. 8 In the present case, the plaintiff contended that the employer would have been liable in an amount of $206,784, being $138,838 less than the assessment under the general law. Her Honour assessed the proportionate responsibility of the employer as 20%. Twenty percent of the amount payable by the appellant was $69,124; 20% of the plaintiff's assessment of the amount payable by the employer would have been $41,357. The difference would be $27,767. The Act limits the contribution which the tortfeasor would be entitled to recover from the employer to the amount calculated as if the whole of the damages were assessed in accordance with the limitations in Part 5, Div 3 of the Act: s 151Z(2)(d). The Act then provides that the damages recoverable by the injured worker are to be reduced by the difference between that figure and the assessment unconstrained by the Act: s 151Z(2)(c). 9 The plaintiff's calculation was not accepted by her Honour, in a second judgment delivered on 7 March 2008, because her Honour then made a further assessment, as to whether the plaintiff had suffered a degree of permanent impairment of at least 15%. Concluding that she had not, her Honour concluded that no damages would have been payable in proceedings brought against the employer: s 151H(1). As a result of this further finding, it became necessary to reduce the damages recoverable from the appellant by the whole of the employer's potential liability, namely 20% of $345,622, giving a judgment in the amount of $276,497.60. 10 The only step in this assessment which was challenged was the apportionment of 20% of the responsibility to the employer, the appellant contending that the appropriate proportion was at least 50%. 11 The proper approach to be taken by this Court in relation to a challenge to the apportionment of culpability of joint tortfeasors was restated in Tarabay v Leite [2008] NSWCA 259 at [31] in the following terms: "Questions of apportionment, like the exercise of a discretionary power, such as sentencing, give rise not merely to evaluative judgments, but to a finding which cannot readily be characterised as right or wrong. They involve identifying a point on a range, not a finding of A or not-A, in a binary system: see In re B (Children) [2008] UKHL 35; [2008] 2 WLR 1 at [2] (Lord Hoffmann). In that respect they differ from a finding of negligence, which, although the result of an evaluative judgment, must be reached without degrees of correctness: see Costa v The Public Trustee of New South Wales [2008] NSWCA 223 at [40]-[41] (Ipp JA) and [103]. Thus, a finding in respect of apportionment of culpability is to be reviewed on the basis of the constraints identified in House v The King [1936] HCA 40; 55 CLR 499 at 505." 12 Recognising the difficulty in challenging such an assessment, absent error of law or factual error, the appellant submitted that her Honour had been in error in finding that the contractual arrangements between the appellant and the Club included a responsibility of the appellant "to clean up in the Restaurant service and dining areas and to take care of any spillages as and when they occur": at [33]. 13 That error was identified by reference to the written agreement between the appellant (referred to as the Caterer) and the Club and in particular the following provisions: "2. The Club shall: … (c) clean daily the dining areas and toilets in the areas used to supply the catering services; (d) shampoo carpets in the dining areas when necessary to maintain a proper standard of cleanliness; … 3. The Caterer shall: … (k) take good and proper care of all parts of the Club it uses and of all plant, articles of equipment, fittings, fixtures and chattels of the Club that it uses and clean and maintain them as and when required and in addition to any other responsibilities under this Agreement to repair or replace any property of the Club destroyed or damaged through misuse or negligence as herein referred to; … (n) clean daily the kitchen areas and bain maries and every two (2) months from the date of the opening of the Bistro or more frequently as determined by the Caterer any grease pits;" 14 The appellant submitted that its obligation in sub-clause 3(k) to "clean and maintain them as and when required" referred only to plant, equipment, fittings, fixings and chattels of the Club and not the floor of the areas it used. Grammatically, there is no reason to distinguish "parts of the Club" which the appellant used from plant and equipment which it used, so that the word "them" applied only to the latter and not to the former. Further, as a matter of common sense, such a distinction would be implausible. 15 With respect to the obligation under sub-clause 3(n), the appellant argued that the "kitchen areas" were separate from the area where the plaintiff fell. (The "bain maries" were pieces of equipment used to keep food hot in the self-service part of the restaurant.) 16 Her Honour stated at [30]: "It would be trite to say that food preparation and serving areas must be clean at all times. In a self-service type Restaurant such as this where patrons obtain food from a bain marie or from a carvery area I have no doubt there would be occasional spillages, and, as well, replenishment of the bain marie containers would involve taking them from the their position resting upon hot water as they do and could involve some spillage from time to time or drips of water from the bottom of containers. No doubt such events are the reason the floor around those areas is tiled and not carpeted so that the floor areas can be kept clean." 17 Her Honour continued: "[33] The obligations in respect of cleaning by the Restaurant are set out in the Agreement and in particular in 3(k) and (n) noting the requirement to ' take good and proper care of all parts of the Club it uses ' (i.e. the Restaurant), and ' clean and maintain as and when required '. This must surely include a responsibility to clean up in the Restaurant service and dining areas and to take care of any spillages as and when they occur. [34] To ' clean daily the kitchen areas and bain maries ' must surely encompass and envisage that Restaurant staff kept those areas clean and ensured that the premises were safe with no extraneous substances such as water or grease on the floor, ie on the tiled area, whilst the major cleaning would be done by contract cleaners when the restaurant and kitchen were empty." 18 The facts established that the plaintiff slipped on the area near the service door, between the kitchen and the tiled area where the bain maries were located. Her Honour's finding that the appellant was primarily responsible for keeping those areas clean and free from water and grease was not erroneous. The agreement confirmed, rather than denied, that degree of responsibility. 19 No error has been demonstrated in her Honour's understanding of the written agreement, nor in her assessment of the factual situation within the Club. This ground of appeal should be rejected. 20 As a second basis of challenge, the appellant noted that her Honour referred, in determining the apportionment of liability, to the decision of this Court in TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1. That case, as the appellant pointed out, involved an apportionment of 25% of liability to the employer, in circumstances where the employer was a labour hire company. The relationship between the Club and the plaintiff in the present case was quite different. 21 What regard her Honour had to the decision in TNT Australia is not identified in the judgment. What is clear, however, is that her Honour appreciated that a factual assessment was required in the circumstances of the case and also that her Honour correctly understood that the assessment depended upon the relationship between the Club and the appellant in relation to the state of the relevant floor area. This matter was discussed in the judgment at [39]-[44]. If her Honour had regard to TNT Australia (without referring to the particular paragraphs which were considered of assistance) it must be understood as providing some assistance generally in discussing how an apportionment is to be undertaken. There is undoubtedly assistance of that kind to be found in the detailed judgment of Mason P in that case. Reference thereto does not demonstrate error. Assessment of seriousness of injury 22 In order to determine the proper assessment of damages for non-economic loss, her Honour was required to assess the plaintiff's injury as a proportion of a most extreme case: Civil Liability Act 2002 (NSW), s 16. Her Honour made an assessment at 30%. 23 The only specific error sought to be identified by the appellant referred to a comment by her Honour that "[i]t 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: at [68]. Her Honour then noted that there was no neurological component to those symptoms. 24 There may be justification for the complaint that her Honour's ambivalent language made it unclear whether she accepted this evidence and took it into account. However, a fair reading of this passage in context indicates that her Honour treated this evidence of the plaintiff (which she generally accepted) as not significant in the overall assessment of the seriousness of the injuries. No factual error warranting intervention has been established. 25 The determination of a proportion in these circumstances is an exercise similar to the apportionment of liability. Absent some demonstrable and significant error of fact or principle, such assessments are not reviewable in this Court. Her Honour noted that the appellant's submission at trial was that the appropriate proportion was either 24% or 25%: the plaintiff had submitted that 33% was the appropriate figure. Unless either of these submissions could be characterised as manifestly without foundation, because based on an erroneous legal or factual premise, the adoption of a figure between the two would itself be unreviewable. Indeed, 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 is untenable. 26 By reference to Owners - Strata Plan 156 v Gray [2004] NSWCA 304, the appellant noted that an assessment of 33% of a most extreme case, with respect to an injury limited to the plaintiff's left ankle, "was so unreasonable and plainly unjust that it must be inferred that in some way his Honour failed properly to exercise the discretion reposed in him in making the determination he did": at [41] (Sheller JA, Gzell J agreeing). Such a case may undoubtedly arise: but in the present case, where the defendant accepted at trial a figure of 24% or 25%, the argument cannot run. 27 The only explanation for the challenge is that, because of the graduated table of damages resulting from a particular assessment, the consequences of a relatively small change in the proportion is significant. Thus, a proportion of a most extreme case fixed at 24% would allow recovery of only 5.5% of the statutory maximum award for non-economic loss. However an assessment at 33% would allow recovery of 33% of the statutory maximum. Although the variation in result is highly significant, that cannot alter the simple proposition that in assessing the appropriate proportion, the trial judge must be accorded a margin within which to operate and it is difficult to identify circumstances in which a variation of some 6% from that proposed by the defendant could of itself demonstrate error. No relevant circumstance was demonstrated in this case. Accordingly, this ground of appeal must also be rejected. Conclusion 28 The challenges raised by the appellant having each failed, the appeal must be dismissed with costs. **********

BON APPETIT FAMILY RESTAURANT PTY LTD v Patricia MONGEY

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