'Fruity' Wins Claim Against Hotel & Builder
A 'grossly intoxicated' man who suffered significant injuries when he fell from a hotel roof under construction has succeeded in his negligence claim in the NSW Supreme Court.
Freudenstein v Marhop & Ors [2010] NSWSC 724 – Judgment delivered 8 July 2010
Douglas Freudenstein, otherwise known as “Fruity”, was injured when he fell from the roof of the Mona Vale Hotel at about 1.30am on Easter Sunday in 2001. He had consumed at least 13 or 14 schooners of full strength beer, most of which had been purchased at the Hotel. The Hotel continued to serve him because it did not regard him as drunk.
The Hotel was undergoing renovations at the time, and to access the roof the plaintiff needed to walk through building work by walking through a fire door and along a corridor. The plaintiff sued the Hotel, its manager and the Builder responsible for the renovations, alleging they were negligent for failing to properly secure the building site.
The defendants argued that ‘Fruity’ was a “very determined entrant”, who ignored obvious risks and was the author of his own demise. They contended that at the time of the accident the fire door was closed, if not locked; there was a warning sign on that door; the corridor was blocked by a plywood barrier; and there was a barrier fence, set back from the edge of the roof, with plastic mesh fastened to that fence blocking his access.
The plaintiff, although admitting that he was intoxicated, gave evidence that he remembered walking unhindered through the fire door onto the roof, from where he fell into the carpark.
The plaintiff’s evidence was preferred and the defendants found liable. A deduction of 50% was made for contributory negligence on account of ‘Fruity’s’ intoxication.
None of the defendants were present when “Fruity” fell and none were able to call a corroborating witness to verify the presence of the barriers and safety measures they said had been put in place. The plaintiff on the other hand did call evidence from his companion (who was present at the Hotel) who confirmed his story and said there was no warning sign, the fire door was wedged open and there were no barriers to the roof.
The Court found in these circumstances that the defendants’ version that the plaintiff ignored obvious risks was implausible.
They were found negligent for failing to properly secure the building site and putting all patrons, including those affected by alcohol, at risk. Although the Court made no apportionment of liability between the defendants, it did note that “the primary responsibility for some aspects rested with the builder”, especially in relation to blocking the external pathway taken by the plaintiff. It was also inferred from the evidence that the opening of the fire door (which allowed initial access to the construction zone) was done by the Hotel’s employees.
To download a full copy of the judgement click here.
Not on our emai list? Click here to subscribe and receive these e-alerts plus more from Elevista!
Freudenstein v Marhop & Ors [2010] NSWSC 724 – Judgment delivered 8 July 2010
Facts
Douglas Freudenstein, otherwise known as “Fruity”, was injured when he fell from the roof of the Mona Vale Hotel at about 1.30am on Easter Sunday in 2001. He had consumed at least 13 or 14 schooners of full strength beer, most of which had been purchased at the Hotel. The Hotel continued to serve him because it did not regard him as drunk.
The Hotel was undergoing renovations at the time, and to access the roof the plaintiff needed to walk through building work by walking through a fire door and along a corridor. The plaintiff sued the Hotel, its manager and the Builder responsible for the renovations, alleging they were negligent for failing to properly secure the building site.
The defendants argued that ‘Fruity’ was a “very determined entrant”, who ignored obvious risks and was the author of his own demise. They contended that at the time of the accident the fire door was closed, if not locked; there was a warning sign on that door; the corridor was blocked by a plywood barrier; and there was a barrier fence, set back from the edge of the roof, with plastic mesh fastened to that fence blocking his access.
The plaintiff, although admitting that he was intoxicated, gave evidence that he remembered walking unhindered through the fire door onto the roof, from where he fell into the carpark.
Decision
The plaintiff’s evidence was preferred and the defendants found liable. A deduction of 50% was made for contributory negligence on account of ‘Fruity’s’ intoxication.
None of the defendants were present when “Fruity” fell and none were able to call a corroborating witness to verify the presence of the barriers and safety measures they said had been put in place. The plaintiff on the other hand did call evidence from his companion (who was present at the Hotel) who confirmed his story and said there was no warning sign, the fire door was wedged open and there were no barriers to the roof.
The Court found in these circumstances that the defendants’ version that the plaintiff ignored obvious risks was implausible.
They were found negligent for failing to properly secure the building site and putting all patrons, including those affected by alcohol, at risk. Although the Court made no apportionment of liability between the defendants, it did note that “the primary responsibility for some aspects rested with the builder”, especially in relation to blocking the external pathway taken by the plaintiff. It was also inferred from the evidence that the opening of the fire door (which allowed initial access to the construction zone) was done by the Hotel’s employees.
To download a full copy of the judgement click here.
Not on our emai list? Click here to subscribe and receive these e-alerts plus more from Elevista!