Bolton, K. v Pangallo, M - [1987] FCA 199

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Appeal - defence of volenti non fit injuria

- rejection of

defence - contributory negligence

- apportionment of liability

i	- grounds	for	interfering	with	apportlonment	- role of
I	court	appellate
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i	Damages - appeal	against	quantum - no new	question of principle
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Law Reform (Miscellaneous Provislons) Ordinance

1955, s.15(1)

Australlan Capital Territory Supreme Court Act

1933, s.53A(1)

Whlm Creek v. Federal

Commissioner of Taxation

(1977) 17 ALR 421

Roggenkamp v. Bennett (1950) 80 CLR 292

Pennington v. Norris (1956) 96 CLR 10

Watt v. Bretag (1982) (1982) 41 ALR 597

Unwin v. Clarke (unreported, 18 Aprll 1984)

Combrldqe v. Whlte (unreported, 22 March 1985)

O'Brien v. McKean (1968) 118 CLR 540

Griffiths v. Kerkemeyer (19J'7) 139 CLR 161

Hodges v. Frost (1984) 53 ALR 373

KEVIN BOLTON v. MARIO PANGALLO

MARIO PANGALLO

v. KEVIN BOLTON

A.C.T.

No. G.24 of 1986

C.T.

No.

26 of 1986

Coram:	Gallop, Neaves and Spender JJ.
Date :	24 April 1987.

Canberra.

'---

-L/'

IN THE FEDERAL COURT OF AUSTRALIA	)
)

AUSTRALIAN

CAPITAL

TERRITORY

1 No. ACT G24 of 1986

DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL FROM

THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

KEVIN BOLTON

Appellant

AND :

MARIO

PANGALLO

Respondent

No. ACT G26 of 1986

BETWEEN:

MARIO PANGALLO

Appellant

AND :	KEVIN	BOLTON
Respondent

O R D E R

Judges Making Order	: Gallop, Neaves and Spender JJ.
Date of Order	: 24 April 1987.
Where Made	: Canberra.

THE COURT ORDERS

THAT:

( 1 )

The appeal be dismissed with costs.

(2) The cross-appeal be dlsmissed with no order as to

costs.

Note: Settlement and entry of orders is dealt

with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

)

AUSTRALIAN

CAPITAL

TERRITORY

)

)	No. ACT G24 of 1986

DISTRICT REGISTRY

DIVISION

GENERAL

)

ON APPEAL FROM THE SUPREME COURT	OF
THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

KEVIN BOLTON

Appellant

AND :

MARIO PANGALLO

Respondent

No. ACT G26 of 1986

BETWEEN: MARIO PANGALLO

Appellant

AND :

KEVIN BOLTON

Respondent

CORAM:

Gallop, Neaves and Spender JJ.

DATE: 24pApril 1987.

REASONS FOR JUDGMENT

GALLOP J.

The unsuccessful defendant In an action for

damages for personal injuries has appealed against the

judgment of the Supreme Court of the Australian Capital

Territory (Kelly J.).

The action was heard on 15 , 16, 17

August 1984 and 21 September 1984 and judgment was delivered

on 29 April 1986.

The successful plalntiff has

cross-appealed against that part of the Judgment by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1987] FCA 199
Decision Date: 24 Apr 1987

CaseChat Overview and Summary

The case of Bolton v. Pangallo involved an appeal and cross-appeal concerning a motor vehicle accident that occurred in 1978. The plaintiff, Kevin Bolton, sued the defendant, Mario Pangallo, for damages arising from injuries sustained during the accident. The Supreme Court of the Australian Capital Territory had previously assessed damages in favour of Bolton and found him to be 30% contributorily negligent. Both parties appealed the decision, with Pangallo arguing that the defence of volenti non fit injuria should have succeeded, and Bolton seeking restoration of the full award of damages on the basis that the finding of contributory negligence was incorrect.

The Federal Court of Australia, in dismissing both the appeal and cross-appeal, upheld the original judgment. The Court found that the trial judge correctly rejected the defence of volenti non fit injuria, as Bolton had not fully appreciated the risk he was taking by riding with Pangallo. The Court also found no error in the trial judge's apportionment of liability, noting that the assessment of contributory negligence was supported by evidence and the correct principles of law had been applied. Regarding the damages assessment, the Court concluded that the trial judge's findings were reasonable and supported by the evidence, particularly in relation to the plaintiff's residual earning capacity, interest on damages, and domestic care costs. The Court thus affirmed the original judgment, dismissing both the appeal and cross-appeal with costs.

Orders