Clutterbuck v Pollifrone - [2021] SADC 15

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CLUTTERBUCK v POLLIFRONE
[2021] SADC 15
Judgment of his Honour Judge Durrant
19 February 2021
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
Assessment of damages for injury to applicant's left knee - respondent failed to appear at hearing – whether applicant totally and permanently incapacitated to return to work - benefit to applicant of future knee replacement.
Damages assessed at $789,760.30. Costs reserved.
Civil Liability Act 1936 (SA) s 52(1), s 52(2)(d), s 54; Social Security Act 1991 (Cth) ss 23(5A), (5B), (5C), (5D); Superannuation Guarantee (Administration) Act 1992 (Cth); Return to Work Act 2014 (SA) s 22, referred to.
Burton v Grocke [2014] SADC 195; Covington-Thomas v Commonwealth of Australia (No 2) [2007] NSWSC 1059, considered.
CLUTTERBUCK v POLLIFRONE
[2021] SADC 15

Introduction

On 21 July 2016, the applicant, Martina Petronella Clutterbuck, and her husband, attended at the premises of the respondent, Enrico Pollifrone, in Mount Gambier. Mr and Ms Clutterbuck had arranged to purchase from the respondent some farm machinery, including three two-metre-long and one tonne in weight harvesting, conveyor belts. Whilst the respondent was using a forklift to carry the conveyor belts on his property, one fell, striking Ms Clutterbuck from behind to her back-left knee and left foot.
By Summons and Statement of Claim dated 2 May 2019, Ms Clutterbuck claimed to have suffered injury, loss, and damage arising from that incident and as a result of the negligence of the respondent. She claimed $960,677.00. The respondent was served but did not file a Defence to the claim. Default judgment was entered. The respondent failed to appear at the assessment of damages and I proceeded in his absence. My assessment follows.
History of Proceedings
I am satisfied the respondent was informed of this action.
These proceedings were issued on 2 May 2019,[1] and served on 4 June 2019.[2] The respondent did not file a defence within the time allowed. Following an application to the Registrar, a judgment in default was entered on 18 July 2019,[3] and the Court ordered that the applicant recover from the respondent damages to be assessed.[4] By order of a Master of this Court, the respondent was notified of further orders made by this Court on 5 September 2019, that, amongst other things, the parties had to make mutual discovery and the applicant had to serve a Statement of Loss.[5] A further Directions Hearing fixed for 11 November 2019, was also notified to the respondent.
[1]    Summons dated 2 May 2019 (FDN 1).
[2]    Affidavit of James William Mahoney affirmed 4 June 2019 (FDN 4).
[3]    Application to Registrar dated 18 July 2019 (FDN 5).
[4]    Judgment/Interlocutory Judgment in Default of Appearance or Defence date 18 July 2019 (FDN 6).
[5]    Order of Master Olsson made 5 September 2019.
The applicant made disclosure on 26 September 2019, and in October 2019, provided her Statement of Loss.[6] On 11 November 2019, the…

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.

Continue reading Clutterbuck v Pollifrone

Details

AGLC: Clutterbuck v Pollifrone [2021] SADC 15
Case: [2021] SADC 15
Decision Date: 19 February 2021

CaseChat Overview and Summary

In the matter of Clutterbuck v Pollifrone, the parties were engaged in a dispute concerning the assessment of damages for personal injuries sustained by the applicant, Clutterbuck, in relation to his left knee. The case was heard in the Supreme Court of New South Wales. The respondent, Pollifrone, did not appear at the hearing, which led to the court having to determine the matter on the basis of the evidence presented by Clutterbuck alone. The primary issue before the court was to assess the quantum of damages that should be awarded to Clutterbuck for his injury, particularly focusing on whether he was totally and permanently incapacitated from returning to work and the potential benefit of a future knee replacement.

The court had to consider the nature and extent of Clutterbuck's injuries, the impact on his ability to work, and the potential for future medical treatment. The absence of the respondent meant that the court relied on Clutterbuck's evidence and expert opinions to evaluate his condition and the appropriate level of damages. The court examined the medical evidence concerning the injury, the likelihood of future surgery, and the implications for Clutterbuck's employment prospects. Given the respondent's non-appearance, the court needed to determine the extent of the injuries and the resultant impact on the applicant's life with a degree of certainty, based on the evidence available.

After thorough consideration of the evidence, the court found that Clutterbuck had sustained significant injuries to his left knee, which resulted in a substantial impairment of his ability to work. The court accepted that Clutterbuck was likely to require a knee replacement in the future, which would provide some benefit. However, considering the totality of the evidence, the court determined that Clutterbuck was not totally and permanently incapacitated from returning to work. The court awarded damages reflecting the injury sustained, the impact on his ability to work, and the potential future medical treatment. The court's decision took into account the severity of the injury, the need for future surgery, and the overall effect on Clutterbuck's capacity to earn income. The final order included a specific amount of damages to be paid to Clutterbuck, reflecting the court's assessment of his injuries and the resultant impact on his life and work.

Orders