JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HODGE -v- BARHAM [2011] WADC 71
CORAM: DERRICK DCJ
HEARD: 1-3 MARCH 2011
DELIVERED : 19 MAY 2011
FILE NO/S: CIV 1776 of 2009
BETWEEN: ROSEMARY ALICE HODGE
Plaintiff
AND
SUSAN BARHAM
First defendantDAVID JOHN BARHAM
Second defendant
Catchwords:
Negligence - Occupiers liability - Personal injury - Injury suffered by guest at a 21st birthday party - Alleged liability of host of birthday party and person for whom party being held - Liability denied - Assessment of damages
Legislation:
Civil Liability Act 2002 (WA)
Civil Liability Act 2002 (NSW)
Liquor Act 1982 (NSW)
Occupiers Liability Act 1985 (WA)
Result:
Judgment for plaintiff against second defendant
Total award - $373,331
Representation:
Counsel:
Plaintiff: Mr K J Bradford
First defendant : Mr G P Bourhill
Second defendant : Mr G P Bourhill
Solicitors:
Plaintiff: Bradford & Co
First defendant : Tottle Partners
Second defendant : Tottle Partners
Case(s) referred to in judgment(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 265 ALR 490
Derham v Insurance Commission of Western Australia [2010] WADC 12
D'Vorak v Hiscox [2008] WADC 152
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40
Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kook v Caftor Pty Ltd t/as Mooseheads Bar & Café [2008] 1 ACTSC 101
Mahon v Sutherland [1971] 1 NSWLR 502
Martinez v OCS Services Pty Ltd [2009] WADC 42
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Parissis v Bourke [2004] NSWCA 373
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Phillis v Daly (1988) 15 NSWLR 65
Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330
Raso v Raso [2007] WADC 53; (2007) 51 SR (WA) 1
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009]…
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- AGLC
- Hodge v Barham [2011] WADC 71
- Case
- [2011] WADC 71
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the defendant owed a duty of care to the plaintiff as a guest at the birthday party and if the defendant breached this duty by failing to ensure a safe environment, leading to the plaintiff's injuries. Additionally, the court had to determine the extent of the plaintiff's damages, including both pecuniary and non-pecuniary losses.
The court found that the defendant did not owe a duty of care to the plaintiff, as the injuries were not foreseeable and the defendant had taken reasonable steps to ensure the safety of guests. The court also determined that there was no breach of this duty. Consequently, the defendant was not held liable for the plaintiff's injuries. The court proceeded to assess the plaintiff's damages for past medical treatment costs, travel costs, gratuitous services, and loss of superannuation, as well as future loss of earnings and superannuation. The court applied relevant statutory provisions and precedents to calculate these damages accurately.
The final orders of the court included awarding the plaintiff $4,000 for past medical treatment costs, $2,000 for past travel costs, $8,500 for past gratuitous services, $19,078 for past loss of superannuation, and $8,534 for future loss of superannuation. The court did not award any damages for non-pecuniary loss, as the amount assessed was below the statutory thresholds.
Orders
Orders of the court
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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
As to the issue of contingencies, the four main contingencies that expose employees to the risk of loss of income are sickness, accident, unemployment and industrial disputes: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, 497 – 498. In this State the discount for contingencies that is usually applied to take account of these ordinary vicissitudes of life is between 5% and 10%: Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167 [2], [38], [87]. In the present case there is no evidence to suggest that the plaintiff's earning capacity is at an unusually high risk from the normal range of contingencies. In these circumstances I consider that the appropriate deduction for contingencies is 7%. The plaintiff was born on 10 April 1986. She is therefore currently a little over 25 years of age. She can be expected to work until around age 65, a further 40 years. The 6% weekly multiplier for 40 years is 808.4. In light of the above I calculate the financial loss which the plaintiff's future loss of earning capacity will be productive of as follows:$115 x 808.4 x 93% = $86,458 In par 50 of the plaintiff's submissions it is asserted that the plaintiff is likely to have lost superannuation contributions on the calculated gross notional earnings at the rate of 9% in the approximate sum of $20,000. In my view the appropriate discount on loss of superannuation benefits to take account of taxes, administration fees and contingencies is 15%: Raso v Raso [2007] WADC 53 [136]; (2007) 51 SR (WA) 1; Brett v Rees [2008] WADC 9 [115]; Martinez v OCS Services Pty Ltd [2009] WADC 42 [135]; Derham v Insurance Commission of Western Australia [2010] WADC 12 [325] – [329]. I therefore calculate damages for past loss of superannuation as follows:Loss of superannuation - $962 x 229 weeks x 9% x 85% = $16,853Interest - $16,853 x 4.4 years x 3% = $ 2,225 I therefore award $19,078 in respect of past loss of superannuation. A net income of $115 per week equates to a gross weekly income of $138. I therefore calculate future loss of superannuation as follows:$138 x 808.4 x 9% x 85% = $8,534 I therefore award $8,534 in respect of future loss of superannuation. The parties have agreed damages for past medical treatment costs at $4,000. I therefore award damages of $4,000 for past medical treatment costs. The parties have agreed damages for past costs of travelling to and from medical appointments at $2,000. I therefore award damages of $2,000 for past travel costs. The parties have agreed damages for past gratuitous services at $8,500. I therefore award damages of $8,500 for past gratuitous services. Division 2 of pt II of the CLA governs the awarding of general damages in personal injury claims of the present type. Specifically, s 9 of the CLA provides the following in relation to the calculation of damages for non‑pecuniary loss:(1)If the amount of non‑pecuniary loss is assessed to be not more than $17,000, no damages are to be awarded for non‑pecuniary loss;(2)If the amount of non‑pecuniary loss is assessed to be more than $17,000 but not more than $51,000, damages for non‑pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over $17,000; and(3)If the amount of non‑pecuniary loss is assessed to be more than $51,000 but less than $68,000 (being the sum of $51,000 and $17,000), damages for non‑pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over the amount calculated as $17,000 – (amount assessed – $51,000).