MATOUK v HUNGRY JACKS [2009] NSWSC 1176

MATOUK v HUNGRY JACKS [2009] NSWSC 1176

The Court was comfortably satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment against the first defendant because the collapse of the stool was not an obvious risk, there was no basis for contributory negligence, and regular inspection of the seats in the public eating area would likely have prevented the accident. The Court was also comfortably satisfied that the plaintiff would recover at least $100,000 in damages, which in the circumstances was substantial damages, and that an interim payment of $35,000 did not exceed a reasonable proportion of the damages likely to be recovered.

Jurisdiction
Australia
Judgment Date
05 November 2009
Procedural Posture
Personal Injury Damages Claim in Negligence and Breach of Contract / Notice of Motion for Interim Payment Under S82 of the Civil Procedure Act 2005
Outcome
Interim payment ordered against the first defendant; costs of the application ordered to be costs in the cause.
Legal Topics
['interim Payment of Damages' 'substantial Damages' 'retail or Commercial Premises Inspection Duty' 'contributory Negligence' 'obvious Risk']
['civil Procedure' 'personal Injury' 'negligence' "occupiers' Liability"] ['interim Payment of Damages' 'substantial Damages' 'retail or Commercial Premises Inspection Duty' 'contributory Negligence' 'obvious Risk']

Case Brief

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Procedural Posture

Personal Injury Damages Claim in Negligence and Breach of Contract / Notice of Motion for Interim Payment Under S82 of the Civil Procedure Act 2005

Legal Issues

  1. 1 ['Whether the Court should order an interim payment under s82 of the Civil Procedure Act 2005 where liability was disputed.' 'Whether the Court was comfortably satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment against the first defendant.' 'Whether the likely judgment would be for substantial damages.' 'What amount, if any, would be a reasonable proportion of the damages likely to be recovered by the plaintiff.']

Ratio Decidendi

The Court was comfortably satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment against the first defendant because the collapse of the stool was not an obvious risk, there was no basis for contributory negligence, and regular inspection of the seats in the public eating area would likely have prevented the accident. The Court was also comfortably satisfied that the plaintiff would recover at least $100,000 in damages, which in the circumstances was substantial damages, and that an interim payment of $35,000 did not exceed a reasonable proportion of the damages likely to be recovered.

Court Disposition

Interim payment ordered against the first defendant; costs of the application ordered to be costs in the cause.

Orders

  • ['I order that the first defendant pay to the plaintiff $35,000 within one month of today, being part of the damages sought to be recovered by the plaintiff in these proceedings.' 'I order that the costs of the application be costs in the cause.']