ECS Group (Australia) Pty Ltd v Hobby - [2014] NSWCA 193

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193
Hearing dates: 20 May 2014
Decision date: 16 June 2014
Before: Gleeson JA at [1];
Sackville AJA at [2];
McDougall J at [75]
Decision:
1. Appeal allowed in part.
2. Cross-appeal dismissed.
3. Set aside Order 1 made by Mahony SC DCJ on 1 May 2013.
4. The parties file within seven days an agreed schedule of damages reflecting the reasons in this judgment.
5. In the absence of agreement, the appellant file and serve its proposed schedule of damages with brief written submissions in support within seven days.
6. The respondent file her proposed schedule of damages with brief written submissions in support, within a further seven days.
7. The respondent pay 50 per cent of the appellant's costs of the appeal.
8. The respondent/cross-appellant pay the appellant/cross-respondent's costs of the cross-appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
TORTS - mitigation of damages - whether plaintiff's refusal to undergo surgery was unreasonable - whether defendant discharged its burden of proof - whether the plaintiff's state of knowledge at the relevant time was taken into account

TORTS - award of damages for past and future attendant care services - whether award of damages made by the primary Judge was supported by evidence
TORTS - award of damages for past and future domestic services provided to children - whether award of damages made by the primary Judge was supported by evidence
Legislation Cited: Civil Liability Act 2002 (NSW) ss 15, 15B
Uniform Civil Procedure Rules 2005 (NSW) r 14.14(2)(a), (c)
Cases Cited: Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370
Fazlic v Milingimbi Community Inc [1982] HCA 3; 150 CLR 345
Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235
Plato Films Ltd v Speidel [1961] AC 1090
Rachel Hobby v Rydges Hotels Ltd (District Court (NSW), 1 May 2013, unrep)
Watts v Rake [1960] HCA 58; 108 CLR 158
Wenkart v Pitman (1998) 46 NSWLR 502
Category: Principal judgment
Parties: ECS Group (Australia) Pty Ltd (Appellant / Cross-Respondent)
Rachel Hobby (Respondent / Cross-Appellant)
Representation: Counsel:
R Cavanagh SC (Appellant / Cross-Respondent)
T Molomby SC / M Daly (Respondent / Cross-Appellant)
Solicitors:
McCulloch & Buggy Lawyers (Appellant / Cross-Respondent)
Brydens Compensation Lawyers (Respondent / Cross-Appellant)

File Number(s): 2013/164957
Publication restriction: None
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-05-01 00:00:00

Before:

Mahony SC DCJ

File Number(s):

11/122035

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent sustained an injury when she slipped and fell while on…

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: [2014] NSWCA 193
Decision Date: 16 June 2014

CaseChat Overview and Summary

In the case of *ECS Group (Australia) Pty Ltd v Hobby*, the appeal concerned the assessment of damages awarded to the respondent for personal injuries sustained in an accident. The primary dispute revolved around whether the respondent's refusal to undergo surgery constituted an unreasonable failure to mitigate her damages, and whether the appellant had discharged its burden of proof in this regard. Further issues related to the adequacy of the evidence supporting the primary judge's awards for past and future attendant care services, and past and future domestic services provided to the respondent's children.

The court was required to determine whether the primary judge erred in finding that the respondent's refusal to undergo surgery was reasonable in the circumstances, and consequently, whether the damages awarded should be reduced for failure to mitigate. Additionally, the court had to assess whether the quantum of damages awarded for attendant care and domestic services was supported by sufficient evidence presented at trial.

The court reasoned that the primary judge had correctly considered the respondent's state of knowledge at the relevant time when assessing the reasonableness of her decision not to undergo surgery. The appellant had failed to discharge its onus of proving that the refusal was unreasonable. However, the court found that the evidence supporting the awards for attendant care and domestic services was insufficient, necessitating a reassessment of these components of the damages.

The appeal was allowed in part, and the cross-appeal was dismissed. The order of the primary judge was set aside, and the parties were directed to file agreed schedules of damages within seven days, or in the absence of agreement, to file their respective proposed schedules with submissions. The respondent was ordered to pay 50 per cent of the appellant's costs of the appeal, and the respondent, as cross-appellant, was ordered to pay the appellant's costs of the cross-appeal.

Orders

Orders of the court

1. Appeal allowed in part.

2. Cross-appeal dismissed.

3. Set aside Order 1 made by Mahony SC DCJ on 1 May 2013.

4. The parties file within seven days an agreed schedule of damages reflecting the reasons in this judgment.

5. In the absence of agreement, the appellant file and serve its proposed schedule of damages with brief written submissions in support within seven days.

6. The respondent file her proposed schedule of damages with brief written submissions in support, within a further seven days.

7. The respondent pay 50 per cent of the appellant's costs of the appeal.

8. The respondent/cross-appellant pay the appellant/cross-respondent's costs of the cross-appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193
Hearing dates:	20 May 2014
Decision date:	16 June 2014
Before:	Gleeson JA at [1]; Sackville AJA at [2]; McDougall J at [75]
Decision:	1. Appeal allowed in part. 2. Cross-appeal dismissed. 3. Set aside Order 1 made by Mahony SC DCJ on 1 May 2013. 4. The parties file within seven days an agreed schedule of damages reflecting the reasons in this judgment. 5. In the absence of agreement, the appellant file and serve its proposed schedule of damages with brief written submissions in support within seven days. 6. The respondent file her proposed schedule of damages with brief written submissions in support, within a further seven days. 7. The respondent pay 50 per cent of the appellant's costs of the appeal. 8. The respondent/cross-appellant pay the appellant/cross-respondent's costs of the cross-appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - mitigation of damages - whether plaintiff's refusal to undergo surgery was unreasonable - whether defendant discharged its burden of proof - whether the plaintiff's state of knowledge at the relevant time was taken into account TORTS - award of damages for past and future attendant care services - whether award of damages made by the primary Judge was supported by evidence TORTS - award of damages for past and future domestic services provided to children - whether award of damages made by the primary Judge was supported by evidence
Legislation Cited:	Civil Liability Act 2002 (NSW) ss 15, 15B Uniform Civil Procedure Rules 2005 (NSW) r 14.14(2)(a), (c)
Cases Cited:	Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 Fazlic v Milingimbi Community Inc [1982] HCA 3; 150 CLR 345 Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235 Plato Films Ltd v Speidel [1961] AC 1090 Rachel Hobby v Rydges Hotels Ltd (District Court (NSW), 1 May 2013, unrep) Watts v Rake [1960] HCA 58; 108 CLR 158 Wenkart v Pitman (1998) 46 NSWLR 502
Category:	Principal judgment
Parties:	ECS Group (Australia) Pty Ltd (Appellant / Cross-Respondent) Rachel Hobby (Respondent / Cross-Appellant)
Representation:	Counsel: R Cavanagh SC (Appellant / Cross-Respondent) T Molomby SC / M Daly (Respondent / Cross-Appellant) Solicitors: McCulloch & Buggy Lawyers (Appellant / Cross-Respondent) Brydens Compensation Lawyers (Respondent / Cross-Appellant)
File Number(s):	2013/164957
Publication restriction:	None
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2013-05-01 00:00:00 Before: Mahony SC DCJ File Number(s): 11/122035