Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: ALDI Foods Pty Ltd v Young [2016] NSWCA 109 Hearing dates: 14 August 2015 Decision date: 13 May 2016 Before: Meagher JA at [1]; Simpson JA at [26]; Adamson J at [149] Decision: (1) Appeal allowed, to the extent only that the award of damages referable to the respondent’s claim for future domestic assistance on a commercial basis is set aside;
(2) Appeal otherwise dismissed;
(3) Judgment for the respondent in the sum of $117,000, that judgment to take effect on 22 October 2014;
(4) The appellant to pay 90 per cent of the respondent’s costs.Catchwords: TORTS – negligence – personal injury – respondent tripped on pallet jack in appellant’s store – duty of care owed by appellant as occupier of store – whether primary judge erred in attributing insufficient weight to CCTV footage and preferring account given by respondent – Supreme Court Act 1970 (NSW), s 75A(6) – CCTV footage more consistent with respondent’s version of events – no error made by primary judge in preferring account given by respondent
TORTS – negligence – breach of duty – whether error in finding of breach – Civil Liability Act 2002 (NSW), s 5B – causation – whether appellant’s negligence caused respondent’s injuries – Civil Liability Act 2002 (NSW), s 5D – contributory negligence – whether finding of 10 per cent contributory negligence erroneously inadequate – grounds of appeal against liability dismissed
DAMAGES – non economic loss – whether assessment of non-economic loss manifestly excessive – extent to which respondent’s symptoms caused by injury in appellant’s store – pre-injury condition – Purkess v Crittenden [1965] HCA 34; 114 CLR 164 – assessment of non-economic loss not manifestly excessive
DAMAGES – future out of pocket expenses – whether allowance excessive
DAMAGES – future domestic assistance – award for future domestic assistance not supported by evidence and set aside – appeal allowed as to award of damages for future domestic assistance onlyLegislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5F, 5G, 5H, 5R, 16
Supreme Court Act 1970 (NSW), s 75ACases Cited: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479
Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139; 86 NSWLR 393
Doubleday v Kelly [2005] NSWCA 151
Fox v Percy [2003] HCA 22; 214 CLR 118
Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
Miller v Galderisi [2009] NSWCA 353
Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298
Papatonakis v Australian Telecommunications Commission [1985] HCA 3; 156 CLR 7
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Purkess v Crittenden [1965] HCA 34; 114 CLR 164
Roads and Traffic Authority…
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- Case
- [2016] NSWCA 109
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the primary judge erred in several respects. These included whether the primary judge had given insufficient weight to CCTV footage and wrongly preferred Mr. Young's account of the incident, whether the finding of a breach of duty of care under section 5B of the *Civil Liability Act 2002* (NSW) was erroneous, whether the appellant's negligence caused the respondent's injuries under section 5D of the *Civil Liability Act 2002* (NSW), and whether the finding of 10 per cent contributory negligence was inadequately low. The court also considered whether the assessment of non-economic loss and future out-of-pocket expenses was manifestly excessive, and whether the award for future domestic assistance was supported by evidence.
The Court of Appeal found that the primary judge did not err in preferring Mr. Young's account over the CCTV footage, as the footage was more consistent with his version of events. The court also dismissed the grounds of appeal relating to liability, including the findings of breach of duty, causation, and contributory negligence. However, the court allowed the appeal in part, setting aside the award for future domestic assistance on a commercial basis due to a lack of supporting evidence. The court upheld the assessment of non-economic loss and future out-of-pocket expenses.
Consequently, the appeal was allowed only to the extent that the award for future domestic assistance was set aside. The judgment for the respondent in the sum of $117,000, with effect from 22 October 2014, was otherwise upheld. ALDI Foods Pty Ltd was ordered to pay 90 per cent of Mr. Young's costs.
Orders
Orders of the court
(1) Appeal allowed, to the extent only that the award of damages referable to the respondent’s claim for future domestic assistance on a commercial basis is set aside;
(2) Appeal otherwise dismissed;
(3) Judgment for the respondent in the sum of $117,000, that judgment to take effect on 22 October 2014;
(4) The appellant to pay 90 per cent of the respondent’s costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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