New South Wales
Court of Appeal
CITATION: Elite Protective Personnel Pty Ltd & Anor v Salmon [2007] NSWCA 322 HEARING DATE(S): 22 March 2007
JUDGMENT DATE:
14 November 2007JUDGMENT OF: Beazley JA at 1; McColl JA at 8; Basten JA at 120 DECISION: 1. Appeal allowed in part. 2.Set aside the judgment of Phelan DCJ of 14 September 2005. 3. In lieu thereof substitute a judgment for the respondent in the amount of $278,881.57. 4.Order the appellants to pay the respondent’s costs of the trial on the ordinary basis. 5. Grant liberty to the parties to submit consent amended short minutes of order correcting order 3 within 14 days of judgment. 6. In the event the parties cannot reach agreement as to the quantum of order 3, grant liberty to the parties to submit written contentions concerning the correct calculation within 14 days of judgment. 7.Respondent to pay the costs of the appeal. CATCHWORDS: NEGLIGENCE – contributory negligence – plaintiff failed to leave nightclub when asked by security guard – plaimtiff's elbow broken by security guard in course of being ejected – whether failed to take reasonable care for his own safety – held no - NEGLIGENCE – contributory negligence – whether defence of contributory negligence available in the case of an intentional tort – principles discussed - DAMAGES – assessment – whether excessive award for non-economic loss and economic loss – awards flawed by primary judge’s failure to appreciate significance of plaintiff’s decision not to resume pre-injury work - damages re-assessed - COSTS – costs of trial – indemnity costs – Calderbank offer of settlement expressed to be inclusive of costs – whether such an offer can be the basis of an award of indemnity costs – no rule that offers inclusive of costs unable to be the basis of such an award – depends on circumstances of the case. LEGISLATION CITED: Civil Procedure Act 2005
Law Reform (Miscellaneous Provisions) Act 1965
Law Reform (Miscellaneous Provisions) Amendment Act 2000
District Court Rules 1973
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005CASES CITED: Associated Confectionery (Aust) Ltd v Mineral and Chemical Traders Pty Ltd (1991) 25 NSWLR 349
Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (Formerly GIO Insurance Limited) and Ors [2006] NSWSC 583
Berrigan Shire Council v Ballerini & Anor (No 2) [2006] VSCA 65
Calderbank v Calderbank [1976] Fam 93
Commissioner for Railways v Halley (1978) 20 ALR 409
Corby District Council v Holst & Co Ltd [1985] 1 WLR 427
Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714
Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1
Cutts v Head [1984] Ch 290
DSE (Holdings) Pty Ltd v InterTAN Inc [2004] FCA 1251; (2004) 51 ACSR 555
Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports 81–695
Donnelly v Edelsten (1994) 49 FCR 384
Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
Farah…
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Details
- Case
- [2007] NSWCA 322
- Decision Date
CaseChat Overview and Summary
The appeal before the Court of Appeal of New South Wales concerned a judgment entered against Elite Protective Personnel Pty Ltd (the appellant) in favour of Mr Salmon (the respondent) for damages arising from negligence. The respondent sustained a broken elbow during an incident involving a security guard employed by the appellant at a nightclub.
The primary legal issues before the Court of Appeal were whether the respondent had been contributorily negligent by failing to leave the nightclub when requested by the security guard, and whether the defence of contributory negligence was available in circumstances involving an intentional tort. The Court was also required to determine whether the damages awarded by the primary judge for non-economic and economic loss were excessive, particularly in light of the respondent's decision not to resume his pre-injury work. Finally, the Court considered whether a settlement offer, expressed to be inclusive of costs, could form the basis for an award of indemnity costs.
The Court held that the defence of contributory negligence was not available in this case, as the respondent's actions did not amount to a failure to take reasonable care for his own safety in the context of the security guard's use of force. The Court found that the primary judge had erred in assessing damages by failing to adequately consider the significance of the respondent's decision not to return to his previous employment. Consequently, the Court re-assessed the damages awarded. Regarding costs, the Court determined that an offer of settlement inclusive of costs could, depending on the circumstances, be a basis for an award of indemnity costs, but this was not applicable in the present case.
The appeal was allowed in part, the original judgment was set aside, and a substituted judgment was entered for the respondent. The appellants were ordered to pay the respondent's costs of the trial on the ordinary basis, while the respondent was ordered to pay the costs of the appeal.
The primary legal issues before the Court of Appeal were whether the respondent had been contributorily negligent by failing to leave the nightclub when requested by the security guard, and whether the defence of contributory negligence was available in circumstances involving an intentional tort. The Court was also required to determine whether the damages awarded by the primary judge for non-economic and economic loss were excessive, particularly in light of the respondent's decision not to resume his pre-injury work. Finally, the Court considered whether a settlement offer, expressed to be inclusive of costs, could form the basis for an award of indemnity costs.
The Court held that the defence of contributory negligence was not available in this case, as the respondent's actions did not amount to a failure to take reasonable care for his own safety in the context of the security guard's use of force. The Court found that the primary judge had erred in assessing damages by failing to adequately consider the significance of the respondent's decision not to return to his previous employment. Consequently, the Court re-assessed the damages awarded. Regarding costs, the Court determined that an offer of settlement inclusive of costs could, depending on the circumstances, be a basis for an award of indemnity costs, but this was not applicable in the present case.
The appeal was allowed in part, the original judgment was set aside, and a substituted judgment was entered for the respondent. The appellants were ordered to pay the respondent's costs of the trial on the ordinary basis, while the respondent was ordered to pay the costs of the appeal.
Orders
Orders of the court
1. Appeal allowed in part. 2.Set aside the judgment of Phelan DCJ of 14 September 2005. 3. In lieu thereof substitute a judgment for the respondent in the amount of $278,881.57. 4.Order the appellants to pay the respondent's costs of the trial on the ordinary basis. 5. Grant liberty to the parties to submit consent amended short minutes of order correcting order 3 within 14 days of judgment. 6. In the event the parties cannot reach agreement as to the quantum of order 3, grant liberty to the parties to submit written contentions concerning the correct calculation within 14 days of judgment. 7.Respondent to pay the costs of the appeal.
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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