Portelli v Tabriska Pty Ltd & Ors [2009] NSWCA 17

Portelli v Tabriska Pty Ltd & Ors [2009] NSWCA 17

The appeal failed because the respondents (publican, licensee, and security provider) neither knew nor ought to have known of any risk to the appellant after the altercation. No apparent belligerence or immediate threat was exhibited by the assailants outside the premises prior to the off-premises assault. There was no breach of duty established, and causation was not proved as no factual error was identified in the primary judge's assessment of the evidence, including rejection of adverse inferences from not calling further witnesses.

Parties
Appellant: Clinton Joseph Portelli; First Respondent: Tabriska Pty Ltd; Second Respondent: Gustav Herstik; Third Respondent: John Lee Gorton trading as Elite One National Security Service
Jurisdiction
Australia
Judgment Date
17 February 2009
Procedural Posture
Appeal / Court of Appeal Judgment Following Appeal From Supreme Court Common Law Division
Outcome
Appeal dismissed with costs.
Legal Topics
Negligence, Duty of Care, Innkeeper Liability, Security Provider Liability, Publicans, Apprehension of Risk, Onus of Proof, Vicarious Liability, Rejection of Evidence, Adverse Inferences, Jones V Dunkel Inference
Torts Evidence Negligence Duty of Care Innkeeper Liability Security Provider Liability Publicans Apprehension of Risk +5 more

Case Brief

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Parties

Clinton Joseph Portelli

Appellant

Tabriska Pty Ltd

First Respondent

Gustav Herstik

Second Respondent

John Lee Gorton trading as Elite One National Security Service

Third Respondent

Procedural Posture

Appeal / Court of Appeal Judgment Following Appeal From Supreme Court Common Law Division

Legal Issues

  1. 1 Whether publicans and security firms owed a duty of care to a patron assaulted off premises after an earlier altercation inside
  2. 2 Whether primary judge erred in finding no knowledge or reason to apprehend risk to appellant
  3. 3 Whether primary judge correctly rejected evidence of a witness and failed to address a written statement properly

Ratio Decidendi

The appeal failed because the respondents (publican, licensee, and security provider) neither knew nor ought to have known of any risk to the appellant after the altercation. No apparent belligerence or immediate threat was exhibited by the assailants outside the premises prior to the off-premises assault. There was no breach of duty established, and causation was not proved as no factual error was identified in the primary judge's assessment of the evidence, including rejection of adverse inferences from not calling further witnesses.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed.
  • Appellant to pay the costs of the respondents.