K'mart Australia Ltd v McCann

Case [2004] NSWCA 283


CITATION: K'Mart Australia Ltd v McCann [2004] NSWCA 283
HEARING DATE(S): 6 July 2004
JUDGMENT DATE:
25 August 2004
JUDGMENT OF: Handley JA at 1; Ipp JA at 2; Pearlman AJA at 3
DECISION: 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
LEGISLATION CITED: Civil Liability Act 2002 s 13
CASES CITED: Baker v Willoughby (1970) AC 467
DNM Mining Pty Ltd v Barwick [2004] NSWCA 137
Jobling v Associated Dairies Ltd (1982) AC 794
Penrith City Council v Parks [2004] NSWCA 201

PARTIES :

K'Mart Australia Ltd (Appellant)
Bruce Edward McCann (Respondent)
FILE NUMBER(S): CA 41172/03
COUNSEL: R Cavanagh (Appellant)
A R Lakeman (Respondent)
SOLICITORS: Hunt & Hunt (Appellant)
Heazlewoods Bushby (Respondent)
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 3171/02
LOWER COURT
JUDICIAL OFFICER :
Andrew ADCJ

    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.

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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.

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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