Janeiro v Bouvet Pty Ltd Trading as Ansett Gateway Hotel File No. SCGRC 92/1169 Judgment No. 3658 Number of Pages 8 Damages General Principles - [1992] SASC 3658

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA FULL COURT King C.J.(2), Mullighan (1) and Olsson(3) JJ.

CWDS
Damages - general principles - personal injuries sustained when fell on a stairway - 39 year old gymnasium proprietor and security guard - body building enthusiast - injuries to lower back, neck and right arm - depression - somatoform disorder to resolve after completion of litigation - would have worked as a security guard but for the injuries - appeal against awards for economic loss past and future, future non-economic loss and future medical expenses - appeal allowed - award for past economic loss increased on appeal from $30,000 to $45,000, award for future economic loss increased from $15,000 to $40,000 - award of $13,000 for future non-economic loss not disturbed - award for future medical expenses increased from $12,000 to $18,000 - increase in award for interest - damages and interest increased by $55,000 to $162,879. Malec v Hutton Proprietary Limited (1990) 169 CLR 638, referred to.

HRNG ADELAIDE, 31 August 1992 #DATE 16:10:1992
Counsel for appellant:     Mr S.R. Walsh QC
Solicitors:                 Georgiadis and Co.
Counsel for respondent:     Mr T.M. McCrae with Mr D.W. Tillett
Solicitors:                 Reilly Downs Humphries

ORDER
Appeal allowed.

JUDGE1 MULLIGHAN J. The appellant was injured on 6th August 1987 when he slipped and fell on stairs at the respondent's hotel at North Terrace, Adelaide. He brought an action in the District Court for damages for those injuries and consequential loss. 2. The learned Trial Judge found that the accident was caused by the negligence of the respondent and he rejected the contention that the appellant failed to take reasonable care for his own safety. He assessed the appellant's damages and interest at $107,019 made up as follows:-
    Past economic loss $30,000
    Future economic loss $15,000
    Past non economic loss $25,000
    Future non economic loss $13,000
    Special damages $7,629
    Future special damages $12,000
    Interest $4,750 There was an error in the addition of these components. Judgment should have been entered for the appellant in the amount of $107,379. This error was not raised, but should be corrected, on appeal. 3. The appellant appeals against the awards for past and future economic loss and future special damages on the ground that each of the awards is manifestly inadequate and against the evidence and the weight of the evidence. He also sought leave to amend the grounds of appeal to permit an appeal against the award for future non economic loss on the same grounds. There is no appeal with respect to liability. 4. The appeal was instituted outside the time limitation imposed by the Local and District Criminal Courts Act 1926 and, at the commencement of the hearing of the appeal, Mr. Walsh QC applied for an extension of time which application was opposed. The respondent did not assert any relevant prejudice. After hearing argument, we indicated to Mr. Walsh that he was at liberty to submit argument in writing as to the power to make an order…

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

AGLC: Janeiro v Bouvet Pty Ltd Trading as Ansett Gateway Hotel File No. SCGRC 92/1169 Judgment No. 3658 Number of Pages 8 Damages General Principles [1992] SASC 3658
Case: [1992] SASC 3658
Decision Date: 16 October 1992

CaseChat Overview and Summary

The Supreme Court of South Australia heard an appeal from Mr. Janeiro, who had suffered personal injuries when he slipped and fell on stairs at the respondent's hotel in Adelaide. The appellant brought an action in the District Court for damages for his injuries and consequential loss. The District Court found that the accident was caused by the negligence of the respondent and assessed the damages and interest at $107,379. Mr. Janeiro appealed against the awards for past and future economic loss, and future special damages, arguing that they were manifestly inadequate and against the evidence and the weight of the evidence. The appeal was instituted outside the time limitation imposed by the Local and District Criminal Courts Act 1926, but the Court granted an extension of time for the appellant to submit his appeal. The Court also granted leave to amend the grounds of appeal to include an appeal against the award for future non-economic loss.

The Court found that the appellant's pre-existing condition, which included significant arthritic changes in his hips and lower back, would have resulted in substantial disability at some point in the future, but it was unlikely to have occurred when the appellant was in his forties. The Court also found that the appellant had a significant earning capacity as a security guard and was capable of working as a gym instructor and conducting his own gymnasium business. The Court increased the award for past economic loss from $30,000 to $45,000, the award for future economic loss from $15,000 to $40,000, and the award for future medical expenses from $12,000 to $18,000. The Court did not disturb the award for future non-economic loss. The Court increased the total damages and interest by $55,500 to $162,879.

Orders