1. Appeal allowed with costs.; 2. Judgment of the District Court for $238,541.23 set aside except as to costs.; 3. Substitute a judgment for the respondent for $95,478.73 with effect from 17 November 2003.; 4. The respondent to have a certificate under the Suitors' Fund Act 1951.
CATCHWORDS:
DAMAGES - personal injuries - unrelated supervening event - assessment must reflect - D
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 41172/03
HANDLEY JA IPP JA PEARLMAN AJA
25 AUGUST 2004
K-MART AUSTRALIA LTD v Bruce Edward McCANN
CATCHWORDS
DAMAGES – personal injuries – unrelated supervening event – assessment must reflect
FACTS
The respondent, a self employed solicitor, was injured on 3 June 1999 in one of the appellant’s supermarkets when a basketball set fell from a shelf on to his head and shoulder. The appellant admitted liability and the action in the District Court went to trial as an assessment. The trial Judge assessed the plaintiff’s damages at $238,541.23. The defendant appealed and challenged the awards for past and future economic loss and for future medical expenses. The respondent suffered a serious stress heart attack on 20 September 2000 which was not related to his orthopaedic injuries and was hospitalised. He was then off work for some 16 months before gradually returning to work on his own account in a less stressful practice. On appeal HELD : (1) The supervening heart attack which was not causally related to the accident could not be disregarded in the assessment of the plaintiff’s economic loss: Jobling v Associated Dairies Ltd (1982) AC 794 and DNM Mining Pty Ltd v Barwick [2004] NSWCA 137 [39] applied; (2) The awards at trial for economic loss were erroneous and had to be reassessed.
ORDERS
1. Appeal allowed with costs.
2. Judgment of the District Court for $238,541.23 set aside except as to costs.
3. Substitute a judgment for the respondent for $95,478.73 with effect from 17 November 2003.
4. The respondent to have a certificate under the Suitors’ Fund Act 1951.
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 41172/03
HANDLEY JA IPP JA PEARLMAN AJA
25 AUGUST 2004
K-MART AUSTRALIA LTD v Bruce Edward McCANN
JUDGMENT
1 HANDLEY JA : I agree with Pearlman AJA.
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
K'mart Australia Ltd v McCann [2004] NSWCA 283
Case
[2004] NSWCA 283
Decision Date
CaseChat Overview and Summary
The appeal concerned the assessment of damages for personal injuries suffered by the respondent, Mr. McCann, in an incident at a K'mart store. The primary dispute revolved around how a subsequent, unrelated event should be factored into the calculation of damages awarded for the initial injury. The matter was heard in the Court of Appeal of New South Wales.
The central legal issue before the Court of Appeal was whether the damages awarded by the District Court for Mr. McCann's injuries should be reduced to account for a supervening event that occurred after the initial injury but before the assessment of damages. Specifically, the court had to determine the correct legal principles to apply when assessing damages for a personal injury where a subsequent, unrelated event has impacted the plaintiff's capacity to earn income or has otherwise affected their loss.
The Court of Appeal reasoned that the damages awarded for the initial injury should reflect the actual loss suffered by the respondent, taking into account the supervening event. The court applied the principle that damages are intended to compensate for the loss actually sustained. Where a subsequent event, not caused by the defendant's negligence, has diminished the plaintiff's earning capacity or increased their loss, the damages awarded against the original tortfeasor should be adjusted accordingly. The court found that the District Court had erred in its assessment by not adequately accounting for this supervening event.
Consequently, the Court of Appeal allowed the appeal, setting aside the original District Court judgment of $238,541.23, except for the costs order. A substituted judgment was entered for the respondent for $95,478.73, with the order to take effect from 17 November 2003. The respondent was also granted a certificate under the Suitors' Fund Act 1951.
Orders
Orders of the court
1. Appeal allowed with costs.; 2. Judgment of the District Court for $238,541.23 set aside except as to costs.; 3. Substitute a judgment for the respondent for $95,478.73 with effect from 17 November 2003.; 4. The respondent to have a certificate under the Suitors' Fund Act 1951.