Basten JA at [1]; Meagher JA at [111]; Adamson J at [112]
Decision:
(1)Allow the appeal and set aside order (1) made in the District Court on 13 September 2013.
(2)In lieu thereof, give judgment for the plaintiff in the amount of $73,800 to take effect on 13 September 2013.
Catchwords:
DAMAGES – assessment – damages awarded on basis of injury to plaintiff’s foot and knee – causal relation between accident and knee injury rejected on appeal – reassessment of damages
DAMAGES – assessment – past and future gratuitous domestic assistance – after injury plaintiff’s husband provided care and domestic assistance – damages awarded based on plaintiff’s and husband’s evidence of the level of services – whether trial judge entitled to disregard medical evidence indicating lack of need – whether past and future services satisfy statutory intensity and duration levels – whether assessment may be made by averaging hours over a period of many weeks – Civil Liability Act 2002 (NSW), s 15B
DAMAGES – assessment – domestic assistance at commercial rates – whether trial judge erred in finding that plaintiff’s husband was “unlikely” to continue providing services – whether additional duties placed “strain” on marriage
NEGLIGENCE – causation – plaintiff broke a bone in her right foot as a result of a fall – whether pain in left knee reported 6 months after the accident causally related to accident – whether medical evidence supported finding of causal link in relation to the knee injury – whether injury occurred during gym session
Wurth v Sampco Pty Ltd t/as The Knickerbocker Hotel [2013] NSWDC 173
Date of Decision:
13 September 2013
Before:
Levy DCJ
File Number(s):
2011/394503
HEADNOTE
[This headnote is not to be read as part of the judgment]
In February 2011, Ms Helen Wurth (the plaintiff) caught her right foot in an unguarded drainway in the carpark of the Knickerbocker Hotel at Bathurst, owned or occupied by Sampco Pty Ltd (the appellant). The plaintiff fell twisting, breaking a bone in and bruising her right foot. Some months after the injury the plaintiff also complained about pain in her left knee. She commenced proceedings in…
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
Sampco Pty Ltd v Wurth [2015] NSWCA 117
Case
[2015] NSWCA 117
Decision Date
CaseChat Overview and Summary
SampCo Pty Ltd (the appellant) appealed to the New South Wales Court of Appeal against a District Court judgment awarding damages to the respondent, Wurth, for injuries sustained in a fall. The primary dispute concerned the assessment of damages, specifically the causal relationship between the accident and a knee injury, and the entitlement to damages for gratuitous domestic assistance.
The Court of Appeal was required to determine whether the trial judge erred in finding a causal link between the accident and the respondent's knee injury, given the medical evidence. Further, the Court had to consider whether the trial judge was entitled to disregard medical evidence regarding the necessity of domestic assistance, and whether the provision of such assistance by the respondent's husband met the statutory intensity and duration requirements under section 15B of the *Civil Liability Act 2002* (NSW). The Court also had to assess whether the trial judge erred in finding that the husband was unlikely to continue providing services and if the additional duties placed a strain on the marriage.
The Court of Appeal found that the trial judge erred in accepting the causal link between the accident and the knee injury, noting that the injury was sustained during a gym session six months after the fall and was not supported by sufficient medical evidence. Consequently, the damages awarded on this basis were set aside. Regarding gratuitous domestic assistance, the Court held that the trial judge was entitled to award damages for past and future assistance, even if medical evidence suggested a lesser need, provided the statutory requirements of intensity and duration were met. The assessment of damages for domestic assistance was reassessed.
The appeal was allowed, and the District Court's order was set aside. Judgment was entered for the respondent in the amount of $73,800.
Orders
Orders of the court
(1)Allow the appeal and set aside order (1) made in the District Court on 13 September 2013.
(2)In lieu thereof, give judgment for the plaintiff in the amount of $73,800 to take effect on 13 September 2013.