Franklins Self Serve Pty Ltd v Goodie - [1998] VSCA 44

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 7889 of 1997

FRANKLINS SELF SERVE PTY. LTD. & ANOR.

Appellants

ALBERTHA HENDRIKA THERESA GOODIE

Respondent

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JUDGES:	WINNEKE, P., BROOKING and ORMISTON, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 September 1998
DATE OF JUDGMENT:	14 September 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 44

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Tort - Negligence - Damages - Rack of steel rakes falling on plaintiff in supermarket - Continuing neck-aches and headaches resulting from more vigorous activities - $14,000 for past and future pain and suffering and $5,000 for future physiotherapy not “wholly erroneous estimate”.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr. A. Ramsey	Norris Coates & Hearle
For the Respondent	Mr. J. Jordan	Saines & Partners

WINNEKE, P.:

I will invite Mr Justice Ormiston to give the first judgment in this appeal.

ORMISTON, J.A.:

This appeal arises out of an accident to the respondent caused by the fall of a stand of steel garden rakes at the appellants' store at Wendouree on 30 May 1996. The rakes fell on the respondent's head in circumstances where she was quite unprepared for the sudden blow from above, which resulted not only in a profusely bleeding cut to her scalp but also a soft tissue injury caused by the rakes jarring her head down hard, which has in turn led subsequently, as the judge found, to persistent neck pain and headaches.
Neither at the trial nor on this appeal was there any issue as to liability, the only issues being whether the damages were properly assessed by the learned trial judge and whether the course of cross-examination was correctly directed by him.
After a trial extending over some two days the learned judge awarded damages in the total sum of $21,225. That sum consisted of $14,000 for past and future pain and suffering and loss of amenities of life; $1,708.40 for the past expenses of attending a physiotherapist; $5,000 for future physiotherapy expenses, which were based on some 16 to 20 visits a year for the rest of the respondent's life, appropriately discounted; $116.55 for medical expenses; and $400 damages in the nature of interest, which one may fairly assume, having regard to its quantum, was confined to past damage.
The grounds of appeal are confined to two issues: one, that the award of damages was manifestly excessive, and, two, that the learned judge erred in law by requiring appellants' counsel in the course of cross-examining the respondent to show an entire surveillance videotape before being entitled to cross-examine her as to any part of the contents of that videotape.
The facts giving rise to this appeal can be seen from the evidence given at the trial. The only oral evidence came from the respondent's side, consisting of her own and her son's evidence and that of a specialist surgeon, Mr Pryor. There was also tendered reports by Mr Pryor, that of a general practitioner, Dr Crook, and two by a physiotherapist, Mr Doddrell. For 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: [1998] VSCA 44
Decision Date: 14 September 1998

CaseChat Overview and Summary

Franklins Self Serve Pty Ltd brought an appeal against a decision made by the District Court of New South Wales, which was in turn an appeal against a decision of the Local Court. The case involved a claim for damages following an incident where the plaintiff was struck by a rack of steel rakes in a supermarket. The plaintiff suffered continuing neck aches and headaches, particularly when engaging in more vigorous activities. The District Court had awarded the plaintiff $14,000 for past and future pain and suffering and $5,000 for future physiotherapy. Franklins argued that this was a wholly erroneous estimate.

The primary legal issue was whether the District Court's award of damages for pain and suffering and for future physiotherapy was appropriate. The Court needed to consider whether it was an error of law for the District Court to have accepted the evidence of the plaintiff's expert witness and to have made the award. This involved assessing the credibility and reliability of the expert's evidence and whether the District Court had properly exercised its discretion in making the award.

The Court found that the District Court had not erred in law. It held that the District Court was entitled to accept the expert evidence, and that the award of damages was not "wholly erroneous". The Court emphasised the importance of the trial judge's role in assessing expert evidence and the wide discretion they have in making awards for damages. The appeal was dismissed, and the original award of damages stood. The Court held that the District Court's assessment of the expert evidence and its exercise of discretion in awarding damages was not flawed.

Orders