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Sivonen v Smith

Sivonen v Smith

Case [2023] NSWSC 984 29 September 2023

Personal injury damages

Measure of Damages

Tort Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sivonen v Smith [2023] NSWSC 984
Hearing dates: 27 February 2023 to 3 March 2023
Date of orders: 29 September 2023
Decision date: 29 September 2023
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:

The first and second defendants are to pay the plaintiff damages in the sum of $2,769,215.20, arising from an accident that occurred on 2 March 2019.

The first and second defendants are to pay the plaintiff’s costs up to 23 December 2021 and indemnity costs from 24 December 2021.

Catchwords:
NEGLIGENCE – Duty of Care – Breach – Causation – Damages – Non-Economic Loss - Economic Loss – Earning Capacity – Measure of Damages – Personal injury damages – Gratuitous attendant care services – Injury by being struck by attachment in claw of excavator operated by Defendant – Plaintiff in exclusion zone – Defendant owed a duty of a care to plaintiff – Defendant failed to take precautions – Defendants negligent – No obvious risk – No contributory negligence

Legislation Cited:
Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D, 5F, 5G, 5H, 5I, 12, 13, 15, 16.

Cases Cited:
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420; 84 ALJR 19; 260 ALR 628; (2009) Aust Torts Reports 82–042
Benic v State of New South Wales [2010] NSWSC 1039
Blakemore v Moore & Clements [2015] NSWDC 9
Bridge v Coles Supermarkets Australia Pty Ltd (No 3) [2017] NSWSC 1800
Bruce v Apex Software Pty Ltd t/as Lark Ellen Aged Care [2018] NSWCA 330
Council of the City of Sydney v Hunter [2014] NSWCA 449
CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1; 80 ALJR 59; 222 ALR 1
Doubleday & Anor v Kelly [2005] NSWCA 151
Dell v Dalton (1991) 23 NSWLR 528
Evans v Bartlam [1940] HCA 27; 64 CLR 1; [1937] AC 473; [1937] 2 All ER 646; 53 TLR 689
Government Insurance Office of NSW v Rosniak (1992) 27 NSWLR 665
Hackshaw v Shaw [1984] HCA 84; 155 CLR 614; 56 ALR 417
Hirst v Sydney South West Area Health Service [2011] NSWSC 664
Joslyn v Berryman [2003] HCA 34; 214 CLR 552; 77 ALJR 1233; 198 ALR 137; 38 MVR 41
Makaroff v Nepean Blue Mountains Local Health District [2019] NSWSC 715
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638; 64 ALJR 316; 13 ALR 447
Matthews v Dean (1990) 11 MVR 455; (1990) Aust Tort Reports 81–037
Origin Energy LPG Pty Ltd v Bestcare Foods Ltd [2012] NSWCA 407
Pamment v Pawelski [1949] HCA 43; 79 CLR 406; [1949] ALR 860
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253
Pennington v Norris [1956] HCA…

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 Sivonen v Smith

Details

AGLC: Sivonen v Smith [2023] NSWSC 984
Case: [2023] NSWSC 984
Decision Date: 29 September 2023

CaseChat Overview and Summary

The plaintiff, Sivonen, sued the defendant, Smith, for damages resulting from injuries sustained when Smith's excavator struck the plaintiff. The primary dispute involved whether Smith owed a duty of care to the plaintiff, whether Smith breached this duty, and if Smith's negligence caused the plaintiff's injuries. The case was heard in the Supreme Court of Victoria.

The court had to determine if Smith owed a duty of care to the plaintiff, given that the plaintiff was in the exclusion zone of the excavator's operation. It was also necessary to establish whether Smith breached this duty by failing to take reasonable precautions and whether this breach directly caused the plaintiff's injuries. The court further needed to assess if the plaintiff's contributory negligence, if any, should mitigate the damages awarded.

The court found that Smith did owe a duty of care to the plaintiff, which was breached when Smith failed to take reasonable precautions. The court held that this breach directly caused the plaintiff's injuries. Notably, the court concluded that the risk was not obvious to the plaintiff and that there was no contributory negligence on the plaintiff's part. Consequently, the court awarded damages for both economic and non-economic loss, including costs for gratuitous attendant care services, based on the plaintiff's diminished earning capacity.

The court ordered Smith to pay the plaintiff a total sum for non-economic loss, economic loss, and costs associated with gratuitous attendant care services. The court further directed that the damages reflect the plaintiff's reduced earning capacity due to the injuries sustained.

Orders