Salkeld v Cocca - [2013] SASCFC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SALKELD v COCCA
[2013] SASCFC 138
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Blue)
18 December 2013
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - REMOTENESS AND CAUSATION
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES - APPORTIONMENT IN PARTICULAR SITUATIONS AND CASES
Appeal from decision awarding damages to respondent to compensate her for injuries she received in a motor vehicle accident.
The respondent pedestrian was crossing a main road when she was knocked down by a vehicle driven by the appellant. Neither party saw the other until impact. Liability for the accident and apportionment was disputed at trial. The judge found the respondent guilty of contributory negligence and apportioned responsibility for the accident as 90% against the appellant and 10% against the respondent. The appellant submits this apportionment is in error and it should be higher against the respondent.
Held - on question of liability: Appeal dismissed. The apportionment by the trial judge was fair and reasonable (at [18]-[25]).
Following the accident the respondent returned to work and shortly after her return she was the victim of a violent armed robbery whilst at work. The respondent suffers from post-traumatic stress disorder and psychiatric injuries. The judge held both the motor vehicle collision and the robbery were contributing causes to an impairment of the plaintiff's earning capacity, and assessed the damages at $213,820 inclusive of interest. The appellant submits the judge erred by conflating the two separate incidents as contributing to the psychiatric injury, and thus erred in calculating the sums awarded for non-economic loss, past economic loss and future economic loss.
Held - on question of quantum: Appeal dismissed. Damages as calculated by the trial judge were not erroneous (at [49]-[56]).
Civil Liability Act 1936 (SA), referred to.
Australian Eagle Insurance Co Ltd v Federation Insurance Ltd (1976) 15 SASR 282; Strong v Woolworths (2012) 246 CLR 182, discussed.

SALKELD v COCCA
[2013] SASCFC 138
Full Court: Gray, Anderson and Blue JJ

GRAY J. I agree with the orders proposed by Anderson J. I do not wish to add to his reasons.
ANDERSON J.
Introduction
This is an appeal from a decision of a District Court judge who awarded the respondent damages to compensate her for injuries she received in a motor vehicle accident.
The appeal relates to both the trial judge’s apportionment of liability for the accident and also the assessment of damages.
The respondent was a pedestrian who was struck by a motor vehicle driven by the appellant while she was crossing Glen Osmond Road on 5 April 2007. She was in the course of her employment and taking money from the Arkaba Pharmacy to the bank on Glen Osmond Road.
The trial judge found that the respondent was guilty of contributory negligence and apportioned responsibility for the accident as to 90% against the appellant and 10% against the respondent. The appellant suggests…

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.

Continue reading Salkeld v Cocca

Details

AGLC: Salkeld v Cocca [2013] SASCFC 138
Case: [2013] SASCFC 138
Decision Date: 18 December 2013

CaseChat Overview and Summary

This case concerned an appeal from a judgment in favour of the respondent, who had suffered injuries when struck by a vehicle driven by the appellant. The collision occurred as the respondent was crossing Glen Osmond Road, having left her place of employment at Arkaba Pharmacy to conduct banking. The appellant admitted negligence and conceded she bore the greater share of responsibility for the accident. The respondent filed a notice of alternative contention seeking an increase in awards for past and future gratuitous services, and an award for future paid care and future medical expenses.

The primary legal issues before the court were the assessment of damages, specifically the remoteness and causation of the respondent's injuries, and the apportionment of responsibility for the collision. The court was required to determine whether the damages awarded were appropriate, considering the nature of the respondent's injuries and the potential for future care and medical treatment.

The court applied established principles of negligence and damages. It considered the appellant's admitted negligence and the respondent's potential contributory negligence, although the appellant conceded she bore the greater share. The court's reasoning focused on the extent to which the appellant's negligent driving caused the respondent's injuries and the appropriate measure of compensation for those injuries, including past and future care and medical expenses. The court also considered the principles of remoteness in assessing damages, ensuring that the compensation awarded was for foreseeable consequences of the appellant's actions.

The court ultimately dismissed the appeal and upheld the judgment in favour of the respondent, finding that the damages awarded were appropriate and that the apportionment of responsibility was just. The notice of alternative contention was also dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The respondent has filed a notice of alternative contention submitting that the amounts allowed on both past and future gratuitous services should be increased and that there should be an award for both future paid care and future medical expenses.Background The respondent’s duties at the Arkaba Pharmacy included the banking. The pharmacy was situated in the Arkaba Shopping Centre adjacent to the Arkaba Hotel on the south-eastern corner of the intersection of Fullarton Road and Glen Osmond Road. The pharmacy was a customer of BankSA and banked at the branch on the northern side of Glen Osmond Road approximately 100 metres north-west of the intersection of Fullarton Road and Glen Osmond Road. In about the middle of the afternoon the respondent left the pharmacy, crossed Fullarton Road then headed north up Fullarton Road to the intersection with Glen Osmond Road. She then turned left and walked along the southern footpath on Glen Osmond Road, passing the Fountain Inn Hotel on her left side. The bank was on the opposite side of the road. Davey Street forms a junction with Glen Osmond Road an estimated 100 metres from the intersection of Fullarton Road and Glen Osmond Road. The respondent commenced to cross the road and had reached a point near the middle of the road when the collision occurred. The vehicle driven by the appellant collided with the respondent. A plan of the accident scene was prepared and tendered by consent. The plan shows that the approximate centre of Glen Osmond Road is about 7 metres from the southern footpath. In other words the respondent had covered almost that distance prior to the impact. The measurement is derived from using the scale of the plan. The vehicle driven by the appellant had been stationary at the intersection of Davey Street and Glen Osmond Road waiting for traffic to clear. It was the appellant’s intention to turn right into Glen Osmond Road and she did so when she thought the roadway was clear. She did not see the respondent at any stage until the impact. Likewise the respondent did not see the appellant until the impact. The respondent lay on the road after the collision until an ambulance came. She was taken to hospital and later discharged but remained unfit for work for a few weeks. At the trial the appellant admitted negligence and conceded that she should bear the greater share of responsibility for the collision. Apart from the appellant and respondent there was one eye witness who confirmed the circumstances of the accident. The appellant told the court that she had collected a child from a school nearby in Parkside and had come via back streets to Davey Street. She had waited in a line of cars in Davey Street while vehicles ahead of her turned into Glen Osmond Road, both to the left and to the right. She came to a halt at the intersection of Davey Street and Glen Osmond Road. She said she saw a break in the traffic to the right and then a sufficient break to the left to enable her to turn. She did not see the pedestrian. She became aware of the pedestrian and slammed on her brakes but it was too late and the collision occurred. She did not know how fast her vehicle was travelling.Negligence – contributory negligence

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J ANDERSON J BLUE J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J, ANDERSON J,

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