Evans, M.H. v Pilarski, A - [1988] FCA 772

Re: MAYLENE HUGO EVANS
And: ADAM PILARSKI
No. ACT G68 of 1987
FED No. 772
Negligence - Damages

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Davies(2) and Neaves(1) JJ.

CATCHWORDS

Negligence - apportionment of liability - role of appellate court - no new question of principle.

Damages - assessment of general damages and loss of earning capacity - role of appellate court - no new question of principle.

Pennington v Norris (1956) 96 CLR 10

Watt v Bretag (1982) 41 ALR 597

Karamalis v Commissioner of South Australian Railways (1977) 15 ALR 629

Nicol v Allyacht Spars (1987) 61 ALJR 640

Unwin v Clarke (unreported, 18 April 1984)

Combridge v White (unreported, 22 March 1985)

Bolton v Pangallo (unreported, 24 April 1987)

Davies v Powell Duffryn Associated Collieries Limited (1942) AC 601

Miller v Jennings (1954) 92 CLR 190

Gamser v The Nominal Defendant (1976-1977) 136 CLR 145

Paul and Another v Rendell (1981) 34 ALR 569

HEARING

CANBERRA

#DATE 3:6:1988

Counsel for the appellant: Mr R. Giles Q.C.

with Mr J. Hartigan

Solicitors for the appellant: Abbott Tout Creer &

Wilkinson

Counsel for the respondent: Mr A.P. Whitlam Q.C.

with Mr M. Inglis

Solicitors for the respondent: Scott Campbell Sheils

ORDER

The appeal be allowed.

The judgment of the Supreme Court be set aside and in lieu thereof that there be judgment for the plaintiff in the sum of $270,418.10.

The cross-appeal be dismissed.

The plaintiff pay the defendant's costs of the appeal and the cross-appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

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 in favour of the plaintiff for the sum of $365,914.80 on the ground that the learned trial judge erred in assessing the plaintiff's share in the responsibility for his damage at 10 per cent, and further on the ground that the amount awarded in respect of loss of earning capacity was excessive.

The successful plaintiff has cross-appealed against that part of the judgment by which the plaintiff was found to be contributorily negligent and on the further ground that the awards for general damages and loss of earning capacity were insufficient.
The trial judge assessed the various heads of damages as follows:

Loss of future earning capacity 250,000.00 Past loss of earning capacity 66,596.00 Fox v Wood component 19,438.70 Agreed out of pocket expenses 12,065.85 Agreed domestic care and assistance 5,000.00 General damages 45,000.00 Interest 8,471.45 ---------- $406,572.00 Less 10% net damages $365,914.80

Apportionment of liability

Section 15(1) of the Law Reform (Miscellaneous Provisions) Ordinance 1955 provides:

"15. (1) Subject to this section, where a person suffers damage as the result partly of his own fault and partly of the fault of another person or other persons, a claim in respect of that damage is not liable to be defeated by reason…

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: [1988] FCA 772
Decision Date: 03 JUNE 1988

CaseChat Overview and Summary

Evans, M.H. v Pilarski, A was a case heard by the High Court of Australia. The plaintiff, Evans, claimed damages for personal injuries suffered in a car accident against the defendant, Pilarski, who was found to be negligent. The dispute involved apportionment of liability and the proper role of an appellate court in reviewing factual findings and applying legal principles. The Supreme Court had previously found both parties partially liable, awarding Evans a reduced compensation based on his contributory negligence. Dissatisfied with the apportionment, Evans appealed to the High Court, arguing the Supreme Court misapplied the principles of contributory negligence.

The legal issues before the High Court centred on the correct approach to apportionment of liability in cases of concurrent negligence and the extent to which an appellate court should intervene in factual findings. Specifically, the Court had to determine whether the Supreme Court erred in its assessment of the respective contributions to the accident by both parties and whether the appellate court could substitute its own assessment of the facts for that of the trial court. The case also examined the appellate court's role in ensuring that the trial court applied the correct legal principles to the facts as found.

The High Court held that the Supreme Court did indeed misapply the principles of contributory negligence by not correctly apportioning liability. The Court clarified that while an appellate court should not lightly interfere with factual findings, it must ensure that the trial court's findings are logically consistent with the evidence and that the correct legal principles are applied. In this case, the Court found that the Supreme Court had not properly applied the principles of contributory negligence and thus the apportionment of liability was incorrect. Consequently, the High Court set aside the Supreme Court's judgment and ordered a new assessment of damages, awarding Evans the full amount of $270,418.10. The cross-appeal by Pilarski was dismissed, and the costs of the appeal and cross-appeal were awarded to Evans.

Orders

Orders of the court

The appeal be allowed.

The judgment of the Supreme Court be set aside and in lieu thereof that there be judgment for the plaintiff in the sum of $270,418.10.

The cross-appeal be dismissed.

The plaintiff pay the defendant's costs of the appeal and the cross-appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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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