R v Halmi

[2005] NSWCA 2

CITATION:	Spooner-Hart Prosthetics Pty Ltd v Jones [2005] NSWCA 2 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	10 September 2004
JUDGMENT DATE:	3 February 2005
JUDGMENT OF:	Mason P at 1; Giles JA at 2; McColl JA at 48
DECISION:	(1) Appeal allowed; (2) Set aside the verdict and judgment for the plaintiff and in lieu thereof verdict and judgment for the defendant; (3) Plaintiff to pay the defendant's costs of the proceedings in the District Court and of the appeal and to have a certificate under the Suitors Fund Act if otherwise qualified.

CATCHWORDS:	Negligence - repairer of leg callipers - judge found negligence in failure to follow up application for health service approval of repairs - not within case as pleaded or conducted - no duty to do so. ND
PARTIES:	Spooner-Hart Prosthetics Pty Ltd - Appellant Allan Arthur Jones - Respondent
FILE NUMBER(S):	CA 40712/03
COUNSEL:	D J Fagan SC & P Frame - Appellant B J Gross QC & D J Williams - Respondent
SOLICITORS:	Hunt & Hunt - Appellant Matthews Williams, Forbes - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 29/01(Forbes)
LOWER COURT JUDICIAL OFFICER:	Christie DCJ

CA 40712/03
DC 29/01 (Forbes)

MASON P
GILES JA
McCOLL JA

Thursday 3 February 2005

SPOONER-HART PROSTHETICS PTY LTD v JONES

Judgment

1 MASON P: I agree with Giles JA.

2 GILES JA: The respondent contracted polio as an infant, and thereafter wore callipers on his legs. (Callipers is also written calipers; I adopt the dictionary preference.) The appellant made and repaired orthotic devices, including leg callipers. From at least the early 1990’s it supplied and repaired the respondent’s callipers.

3 On 5 February 2000 the respondent fell and was injured when his left leg calliper gave way at the knee joint. He claimed damages from the appellant, and on 22 July 2003 Christie DCJ found a verdict and gave judgment in his favour for $50,000. By leave granted on 5 March 2004, the appellant appealed on liability and in relation to payment of costs following a re-opening of the respondent’s case.

The respondent’s pleaded case

4 The respondent brought his case in negligence and alternatively for the supply of defective goods in contravention of the Trade Practices Act 1974 (C’th). The statutory claim was not dealt with by the judge or raised in the appeal, and need not be considered.

5 The respondent’s pleading alleged that the appellant supplied him with a new set of callipers in 1997; that they were returned to the appellant for repair in August 1999; that the respondent was “advised to wear his old calipers … whilst the new calipers were with [the appellant] for repair”; that the old callipers were “in a poor state of repair, the joints being worn, and were fastened at the knee joint by an elastic band, which was prone to breakage”; that the respondent fell and was…