Herd v Chevalier Pty Ltd - [2009] SADC 63

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
HERD v CHEVALIER PTY LTD
[2009] SADC 63
Judgment of His Honour Judge Burley
9 June 2009
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY
DAMAGES - GENERAL PRINCIPLES - GENERAL AND SPECIAL DAMAGES
Plaintiff's claim for damages for personal injury - plaintiff carried out clerical work under a labour hire contract at defendant’s premises - plaintiff injured falling from chair - plaintiff brought action in negligence because s54 (1) of the Workers Rehabilitation & Compensation Act did not apply - whether defendant negligent - whether plaintiff contributorily negligent - quantum of claim disputed - extensive experts’ evidence considered - held, defendant’s negligence established, plaintiff not contributorily negligent - damages assessed as follows:
Non-Economic Loss: Past - $32,500.00, Future - $32,500.00; Interest on Past Non-Economic Loss - $5,600.00; Past Economic Loss and Superannuation - $250,000.00; Future Economic Loss and Superannuation - $177,000.00; Special Damages - $27,271.30; Gratuitous Services - $15,000.00; Future Medical Expenses - $5,000.00; TOTAL = $544,871.30
Mason and Cox Pty Limited v McCann (1999) 74 SASR 438; Wyong Shire Council v Shirt & Ors (1980) 146 CLR 40; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Dibbins v Dibbins (1978) 80 LSJS 165; Slattery v Beare & Ors (2001) 213 LSJS 131, considered.

HERD v CHEVALIER PTY LTD
[2009] SADC 63

The plaintiff claims damages for personal injury arising out of a work incident on 20 November 2000. At the time, the plaintiff was employed by a company called Recipes That Talk Pty Ltd. That company entered into a labour hire contract with the defendant as a result of which the plaintiff carried out clerical work at the defendant’s premises located at 27 Ridgeway Road, Elizabeth West.
It is not in dispute that on 20 November 2000 the plaintiff was injured at work. She was working at her desk when papers were blown from her desktop by a draft from a nearby air-conditioner. The chair on which she was seated at the time was an ordinary office chair which swivelled on a vertical access. The chair was on castors and so could move as freely across the surface of the office floor which consisted of ceramic tiles.
When the papers were blown off the plaintiff’s desk, she turned to her right using the swivel function of the chair. She then took her weight entirely off the chair and bent over forwards to pick up the papers on the floor. Once she had picked up the papers she then attempted to seat herself on the chair and in doing so caused the chair to move backwards in a manner unexpected by the plaintiff. I accept the plaintiff’s evidence that, without realising that the chair was moving from under her, she attempted to lower herself onto the seat of the chair but, in doing so, 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: [2009] SADC 63
Decision Date: 9 June 2009

CaseChat Overview and Summary

The matter before the court was an action brought by Herd against Chevalier Pty Ltd for damages arising from personal injury. Herd had been engaged as a labour hire worker to perform clerical tasks at Chevalier's premises when an accident occurred, resulting in injury. The plaintiff claimed damages in negligence as the statutory exception under section 54(1) of the Workers Rehabilitation and Compensation Act did not apply to her situation. The defendant contested the plaintiff’s claims on the grounds of contributory negligence and disputed the quantum of damages.

The primary legal issues before the court were whether Chevalier Pty Ltd was negligent in the circumstances leading to Herd’s injury, and if so, whether Herd was contributorily negligent. Additionally, the court needed to determine the appropriate measure and remoteness of damages for both economic and non-economic losses, considering extensive expert evidence. The court found that Chevalier Pty Ltd was indeed negligent, and that Herd was not contributorily negligent. The court then assessed the damages, attributing specific amounts to non-economic loss, interest on past non-economic loss, past and future economic loss including superannuation, special damages, gratuitous services, and future medical expenses.

The court ruled in favour of Herd, awarding her a total of $544,871.30 in damages. This sum included $32,500 for past and future non-economic loss, interest on past non-economic loss, past and future economic loss with superannuation, special damages, gratuitous services, and future medical expenses. The court carefully considered expert evidence and statutory provisions to arrive at the final assessment. The detailed breakdown of damages reflects the comprehensive evaluation of all elements of the plaintiff’s loss and the statutory entitlements.

Orders