New South Wales
Court of Appeal
CITATION: GORDON v ROSS [2006] NSWCA 157
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 8 December 2005
JUDGMENT DATE:
22 June 2006JUDGMENT OF: Hodgson JA at 1; Bryson JA at 8; Basten JA at 9 DECISION: (1) The judgment in favour of the plaintiff entered by the District Court on 10 March 2005 in the amount of $1,071,858.07 be set aside and judgment entered for the plaintiff in the District Court in the sum of $879,528; (2) Appeal otherwise dismissed; (3) Appellant to pay 80% of the Respondent’s costs in this Court; (4) Grant the Respondent an indemnity certificate under s 6(1) of the Suitors’ Fund Act 1951 (NSW), in respect of the appeal; (5) Liberty to the parties to apply within 28 days in relation to the calculation of the amount of the judgment or as to the basis for assessment of costs CATCHWORDS: NEGLIGENCE – duty of care owed by employer to employee – employee struck in the back by heifer while cattle drenching – suffered serious neck injury – causation –whether failing to employ a third person to assist with drenching caused injury –whether there was contributory negligence on the part of the employee - EVIDENCE – whether file note was a ‘business record’ – whether payments by insurer an ‘admission’ - DAMAGES – whether the award for non-economic loss too great – whether damages should be reduced for board and lodging provided by relatives or friends –whether damages for loss of earning and future domestic care should be proportionately reduced for the possibility of improvement in condition LEGISLATION CITED: Civil Liability Act 2002, s15
Evidence Act 1995 (NSW), s69, s81, s87
Workers Compensation Act 1987 (NSW), s60AA, s151G, s151KCASES CITED: Anikin v Sierra (2005) 79 ALJR 452
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Chappel v Hart (1998) 195 CLR 232
Christiansen v J W Simpson & Co Pty Ltd [1971] SASR 412
Commissioner for Main Roads v Jones (2005) 79 ALJR 1104
Copmanhurst Shire Council v Watt [2005] NSWCA 245
Dell v Dalton (1991) 23 NSWLR 528
Department of Education and Training v Sinclair [2005] NSWCA 465
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Fox v Percy (2003) 214 CLR 118
Huysse v Snowy Mountains Hydro-Electric Authority [1975] 1 NSWLR 401
Liffen v Watson [1940] 1 KB 556 (CA)
Lustre Hosiery Ltd v York (1935) 54 CLR 134
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Naxakis v Western General Hospital (1999) 197 CLR 269
New South Wales v Fahy [2006] NSWCA 64
Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743
Quigley v The Commonwealth (1981) 55 ALJR 579
Rosenberg v Percival (2001) 205 CLR 434
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29, 49 NSWLR 262
TC v State of New South Wales [2001] NSWCA 380
The National Insurance Co of New Zealand v Espagne…
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- AGLC
- Gordon v Ross [2006] NSWCA 157
- Case
- [2006] NSWCA 157
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CaseChat Overview and Summary
In *Gordon v Ross*, the plaintiff, an employee, sued the defendant employer for damages arising from a serious neck injury sustained when he was struck in the back by a heifer during cattle drenching. The case was heard in the Court of Appeal of New South Wales.
The primary legal issues before the court were whether the employer owed a duty of care to the employee, whether the employer's alleged breach of that duty caused the employee's injury, and whether the employee was contributorily negligent. The court also considered evidentiary matters concerning a file note and payments by an insurer, as well as the assessment of damages, including non-economic loss, loss of earning capacity, future domestic care, and the appropriateness of reducing damages for benefits received from relatives and the possibility of future improvement.
The Court of Appeal found that the employer did owe a duty of care and that there was a breach of that duty. However, the court reduced the damages awarded by the District Court. This reduction was primarily due to a reassessment of the quantum of damages, particularly concerning non-economic loss and future economic loss, and the application of a discount for the possibility of improvement in the plaintiff's condition. The court also considered the extent to which the plaintiff's own conduct contributed to his injuries.
The Court of Appeal set aside the original judgment and entered judgment for the plaintiff in a reduced sum. The appeal was otherwise dismissed, with the appellant ordered to pay a significant portion of the respondent's costs and granted an indemnity certificate.
The primary legal issues before the court were whether the employer owed a duty of care to the employee, whether the employer's alleged breach of that duty caused the employee's injury, and whether the employee was contributorily negligent. The court also considered evidentiary matters concerning a file note and payments by an insurer, as well as the assessment of damages, including non-economic loss, loss of earning capacity, future domestic care, and the appropriateness of reducing damages for benefits received from relatives and the possibility of future improvement.
The Court of Appeal found that the employer did owe a duty of care and that there was a breach of that duty. However, the court reduced the damages awarded by the District Court. This reduction was primarily due to a reassessment of the quantum of damages, particularly concerning non-economic loss and future economic loss, and the application of a discount for the possibility of improvement in the plaintiff's condition. The court also considered the extent to which the plaintiff's own conduct contributed to his injuries.
The Court of Appeal set aside the original judgment and entered judgment for the plaintiff in a reduced sum. The appeal was otherwise dismissed, with the appellant ordered to pay a significant portion of the respondent's costs and granted an indemnity certificate.
Orders
Orders of the court
(1) The judgment in favour of the plaintiff entered by the District Court on 10 March 2005 in the amount of $1,071,858.07 be set aside and judgment entered for the plaintiff in the District Court in the sum of $879,528; (2) Appeal otherwise dismissed; (3) Appellant to pay 80% of the Respondent's costs in this Court; (4) Grant the Respondent an indemnity certificate under s 6(1) of the Suitors' Fund Act 1951 (NSW), in respect of the appeal; (5) Liberty to the parties to apply within 28 days in relation to the calculation of the amount of the judgment or as to the basis for assessment of costs
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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