Elite Protective Personnel Pty Ltd v Salmon

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.