Ferguson v McDonalds Australia Pty Ltd - [2005] NSWCA 401

CITATION:
Ferguson v McDonalds Australia Pty Ltd [2005] NSWCA 401

HEARING DATE(S):
20 October 2005

JUDGMENT DATE:

21 November 2005

JUDGMENT OF:
Tobias JA at 1; Gzell J at 98

DECISION:
(a) Appeal allowed; (b) That the verdict, judgment and orders made by Hughes DCJ on 30 April 2004 be set aside; (c) That there be a new trial limited to damages; (d) That the costs of the first trial are to abide the result of the second trial; (e) That the respondent is to pay the appellant's costs of the appeal and to have a certificate under The Suitors’ Fund Act 1951, if otherwise qualified

CATCHWORDS:
DAMAGES – Previous injury – Whether medical evidence revealed aggravation – Whether diminution in capacity to work – Threshold for award of damages for non-economic loss – Civil Liability Act 2002 - EVIDENCE – Credibility – Reliability of witness – Primary judge’s findings based on video evidence – Whether findings subject to appellate intervention

LEGISLATION CITED:
Civil Liability Act 2002
The Suitors’ Fund Act 1951

CASES CITED:
Fox v Percy (2003) 214 CLR 118
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34

PARTIES:
Barry Ferguson
McDonalds Australia Pty Limited

FILE NUMBER(S):
CA 40571/04

COUNSEL:
A: S Norton SC / Ms I Welsh
R: A.M. Colefax SC / J B Turnbull

SOLICITORS:
A: Maxwell Berghouse & Ives, Smithfield
R: Hunt & Hunt, Sydney

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 4587/02

LOWER COURT JUDICIAL OFFICER:
Hughes J

CA 40571/04
DC 4587/02

TOBIAS JA
GZELL J
Monday 21 November 2005

BARRY FERGUSON v McDONALDS AUSTRALIA PTY LIMITED

Judgment

1 TOBIAS JA: On 28 November 2001 Mr Barry Ferguson (the appellant) slipped on some detergent on the floor of the men's toilet at premises owned by McDonalds Australia Pty Limited (the respondent) whereupon he fell injuring his back (the second accident). On 28 May 2002 the appellant instituted proceedings in the District Court against the respondent claiming damages in respect of its alleged negligence. The respondent admitted liability so that the only live issue, apart from an allegation of contributory negligence (which was but faintly pursued), was the assessment of damages.

2 The appellant had previously sustained injuries to his back, neck and shoulders on 19 August 1998 when he fell down some steps (the first accident) at the home of his mother-in-law. He had previously instituted proceedings in respect of that accident, which were ultimately settled for the amount of $20,000. The appellant contended before the primary judge that the injuries to his back sustained in the second accident constituted an aggravation of his pre-existing back condition sustained in the first accident.

3 The major issue in contention before Hughes DCJ, the primary judge, was whether after the second accident the appellant's back condition was worse than it was immediately before that accident either in terms of the pain he was suffering or with respect to his capacity to gain employment. His Honour found that, while 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.

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Details

Case: [2005] NSWCA 401
Decision Date: 21 November 2005

CaseChat Overview and Summary

The appellant, Ferguson, brought proceedings against the respondent, McDonalds Australia Pty Ltd, seeking damages for injuries sustained in the course of his employment. The primary judge, Hughes DCJ, had made findings regarding the appellant's injuries and awarded damages. The appeal was heard by Tobias JA and Gzell J.

The central legal issues before the appellate court concerned whether the medical evidence sufficiently demonstrated an aggravation of a pre-existing condition and a consequent diminution in the appellant's capacity to work. Furthermore, the court was required to consider the threshold for an award of damages for non-economic loss under the *Civil Liability Act 2002*, and the reliability of the primary judge's findings, particularly those based on video evidence, in the context of potential appellate intervention.

The appellate court allowed the appeal, setting aside the verdict, judgment, and orders of the primary judge. Their Honours found that the primary judge's findings were not adequately supported by the evidence, particularly concerning the extent of aggravation of the appellant's pre-existing condition and the resulting impact on his earning capacity. The court determined that a new trial limited to the assessment of damages was necessary to address these deficiencies. The costs of the first trial were ordered to abide the result of the second trial, and the respondent was ordered to pay the appellant's costs of the appeal, with a certificate under *The Suitors’ Fund Act 1951* granted if applicable.

Orders

Orders of the court

(a) Appeal allowed; (b) That the verdict, judgment and orders made by Hughes DCJ on 30 April 2004 be set aside; (c) That there be a new trial limited to damages; (d) That the costs of the first trial are to abide the result of the second trial; (e) That the respondent is to pay the appellant's costs of the appeal and to have a certificate under The Suitors’ Fund Act 1951, if otherwise qualified

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.

CITATION:	Ferguson v McDonalds Australia Pty Ltd [2005] NSWCA 401
HEARING DATE(S):	20 October 2005
JUDGMENT DATE:	21 November 2005
JUDGMENT OF:	Tobias JA at 1; Gzell J at 98
DECISION:	(a) Appeal allowed; (b) That the verdict, judgment and orders made by Hughes DCJ on 30 April 2004 be set aside; (c) That there be a new trial limited to damages; (d) That the costs of the first trial are to abide the result of the second trial; (e) That the respondent is to pay the appellant's costs of the appeal and to have a certificate under The Suitors’ Fund Act 1951, if otherwise qualified

CATCHWORDS:	DAMAGES – Previous injury – Whether medical evidence revealed aggravation – Whether diminution in capacity to work – Threshold for award of damages for non-economic loss – Civil Liability Act 2002 - EVIDENCE – Credibility – Reliability of witness – Primary judge’s findings based on video evidence – Whether findings subject to appellate intervention
LEGISLATION CITED:	Civil Liability Act 2002 The Suitors’ Fund Act 1951
CASES CITED:	Fox v Percy (2003) 214 CLR 118 Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
PARTIES:	Barry Ferguson McDonalds Australia Pty Limited
FILE NUMBER(S):	CA 40571/04
COUNSEL:	A: S Norton SC / Ms I Welsh R: A.M. Colefax SC / J B Turnbull
SOLICITORS:	A: Maxwell Berghouse & Ives, Smithfield R: Hunt & Hunt, Sydney

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4587/02
LOWER COURT JUDICIAL OFFICER:	Hughes J