Neill v Fallon

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 82 of 1994
Brisbane [Neill v. Fallon & ors]
BETWEEN:

JAMES NEILL

(Plaintiff) Appellant

AND:

LYNDA GAY FALLON, RUSSELL JOHN

FALLON and ANDREW WATERS

(Defendants) Respondents

FITZGERALD P.

DAVIES J.A. PINCUS J.A.

Judgment delivered 20/02/1995

SEPARATE REASONS FOR JUDGMENT OF FITZGERALD P., DAVIES, AND

PINCUS JJ.A., ALL CONCURRING AS TO THE ORDER MADE.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	DAMAGES - PERSONAL INJURIES - whether injury and consequences resulted from the negligence of the respondents or their servants or agents
EXEMPTION CLAUSE - whether negligent activities of the respondents' servants or agents was covered by the clause in question
Fair Trading Act s. 38 - negligent advice - whether misleading or deceptive
Counsel:	A. Morris Q.C. with him R. King for the Appellant P. Keane Q.C. with him R. Morton for the Respondents
Solicitors:	Cranston McEachern & Co. for the Appellant Wheldon & Associates for the Respondents
Date of Hearing:	21 September 1994
IN THE COURT OF APPEAL	[1995] QCA 018
SUPREME COURT OF QUEENSLAND	Appeal No. 82 of 1994
Brisbane
Before	Fitzgerald P. Davies J.A. Pincus J.A.

[Neill v. Fallon & ors]

BETWEEN:

JAMES NEILL

(Plaintiff) Appellant

AND:

LYNDA GAY FALLON, RUSSELL JOHN

FALLON and ANDREW WATERS

(Defendants) Respondents

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 20/02/1995

This is an appeal from a judgment in the District Court on 11 April 1994 dismissing the appellant's claim against the respondents and ordering him to pay their taxed costs.

There is no dispute as to damages, which the trial judge assessed at $28,485.00. Further, although the respondents submitted that the trial judge's finding that they had been negligent "cannot be sustained" because the appellant "failed to prove this aspect of his case", there was evidence to support the findings that the appellant's injury resulted from the negligence of the respondents, which was the sole basis for the appellant's claim as it was pleaded.

In view of the manner in which the appeal was conducted in this Court, it is satisfactory to take the trial judge's description of events. His Honour's reasons for judgment state:

"The [appellant's] claim is for damages for personal injuries and their consequences. It is alleged that he was injured whilst he was a member of the Bodyshape Fitness Centre. This was an establishment owned and controlled by the [respondents].

I have carefully considered the witnesses in this action as they gave evidence. I have come to the conclusion that the [appellant's] evidence as to what transpired is more credible than the evidence called by and on behalf of the [respondents].

I find that the [appellant] wanted to enter into competitive body building. This was to be a Master's body building because of his age. He had been to previous gymnasiums to investigate their facilities. Some were too expensive. He came to the [respondents'] gymnasium. It was economically attractive. There was a lady, then on the staff, who had been a competitive body builder. The [appellant] had…