Hickey v Davistown RSL Club Ltd

CITATION: HICKEY v DAVISTOWN RSL CLUB LTD [2003] NSWCA 110

HEARING DATE(S): 10 April 2003

JUDGMENT DATE:
10 April 2003

JUDGMENT OF: Mason P at 1, 5; Meagher JA at 7; Santow JA at 8

DECISION: Appeal dismissed with costs.

CATCHWORDS: Appeal - negligence alleged - primary facts as found by trial judge not in issue - ground of appeal asserting lack of sufficient reasons withdrawn - two friends drinking and playing poker machine at RSL Club for several hours - jackpot! - verbal argument about sharing winnings - closing time - doorman escorted them from premises - each man lived within walking distance of Club - appellant's friend let argument drop and started walking away - appellant ran after him, swung a punch and missed - appellant lost balance and fell to ground injuring himself - Club employees had no reason to believe verbal argument might escalate - whether Club was negligent - appeal continued after and despite South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 - hopeless appeal. (ND)

PARTIES :
Ross Patrick HICKEY v DAVISTOWN RSL CLUB LTD

FILE NUMBER(S): CA 40528/02

COUNSEL: Appellant: J Rowe
Respondent: D Campbell SC / T Moisidis

SOLICITORS: Appellant: Bayside Solicitors
Respondent: Ebsworth & Ebsworth

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 6659/00

LOWER COURT
JUDICIAL OFFICER : Garling DCJ

CA 40528/02
DC 6659/00

MASON P
MEAGHER JA
SANTOW JA

Thursday 10 April 2003

Ross Patrick HICKEY v DAVIDSTOWN RSL CLUB LTD

JUDGMENT

1 MASON P for the Court: This appeal is hopeless. It is dismissed for the reasons stated by the trial judge.

2 Mr Rowe why shouldn’t the Court in the circumstances of this case consider making a wasted costs order against you and/or your solicitor under Part 52A, rule 43 and rule 43A?

3 [Discussion ensued]

4 Having dismissed the appeal on the basis that it was in our view hopeless, the question was raised as to whether a wasted costs order should be visited upon the solicitor and/or barrister representing the appellant. Counsel indicated that he sought an adjournment in order to have a reasonable opportunity for him and his solicitor to be heard in accordance with Part 54A rule 43 and rule 43A.

5 Senior counsel for the respondent indicated that his client sought no order for costs other than the usual order. In all of the circumstances and rather than spend further time and money in this matter the Court will accede to the application of the respondent. The appeal is dismissed with costs.

6 MEAGHER JA: I agree.

7 SANTOW JA: I agree.

**********

Last Modified: 05/20/2003

CaseChat Overview and Summary

The appellant, Mr Hickey, brought proceedings against the respondent, Davistown RSL Club Ltd, alleging negligence. The dispute arose from injuries sustained by Mr Hickey after he fell to the ground outside the Club premises. The primary facts as found by the trial judge were not in dispute on appeal. The appeal was heard by Mason P, Meagher and Santow JJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the Club had been negligent in its duty of care towards Mr Hickey. Specifically, the court had to consider whether the Club's employees had a sufficient reason to believe that the verbal argument between Mr Hickey and his friend would escalate into physical violence, thereby necessitating intervention beyond escorting them from the premises. The appeal proceeded despite the decision in *South Tweed Heads Rugby League Football Club Ltd v Cole* (2002) 55 NSWLR 113.

The Court of Appeal found that the Club's employees had no reason to anticipate that the verbal argument would escalate to the point of physical confrontation. The appellant and his friend had been drinking and playing poker machines for several hours, and while a verbal argument about sharing winnings occurred, there was no indication that it would lead to violence. The doorman had escorted both men from the premises, and the appellant's friend had ceased the argument and begun to walk away. The appellant then pursued his friend, initiated a physical altercation, and consequently fell and injured himself. The Court concluded that the appeal was without merit.

The appeal was dismissed with costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	HICKEY v DAVISTOWN RSL CLUB LTD [2003] NSWCA 110
HEARING DATE(S):	10 April 2003
JUDGMENT DATE:	10 April 2003
JUDGMENT OF:	Mason P at 1, 5; Meagher JA at 7; Santow JA at 8
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	Appeal - negligence alleged - primary facts as found by trial judge not in issue - ground of appeal asserting lack of sufficient reasons withdrawn - two friends drinking and playing poker machine at RSL Club for several hours - jackpot! - verbal argument about sharing winnings - closing time - doorman escorted them from premises - each man lived within walking distance of Club - appellant's friend let argument drop and started walking away - appellant ran after him, swung a punch and missed - appellant lost balance and fell to ground injuring himself - Club employees had no reason to believe verbal argument might escalate - whether Club was negligent - appeal continued after and despite South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 - hopeless appeal. (ND)
PARTIES :	Ross Patrick HICKEY v DAVISTOWN RSL CLUB LTD
FILE NUMBER(S):	CA 40528/02
COUNSEL:	Appellant: J Rowe Respondent: D Campbell SC / T Moisidis
SOLICITORS:	Appellant: Bayside Solicitors Respondent: Ebsworth & Ebsworth

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 6659/00
LOWER COURT JUDICIAL OFFICER :	Garling DCJ