CITATION: Ferguson v McDonalds Australia Pty Ltd [2005] NSWCA 401
HEARING DATE(S): 20 October 2005
JUDGMENT DATE:
21 November 2005JUDGMENT 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 1951CASES CITED: Fox v Percy (2003) 214 CLR 118
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34PARTIES: Barry Ferguson
McDonalds Australia Pty LimitedFILE NUMBER(S): CA 40571/04
COUNSEL: A: S Norton SC / Ms I Welsh
R: A.M. Colefax SC / J B TurnbullSOLICITORS: 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 4587/02Monday 21 November 2005TOBIAS JA
GZELL J
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…
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- Case
- [2005] NSWCA 401
- Decision Date
CaseChat Overview and Summary
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
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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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