Terry v Leventeris

Case [2011] SASCFC 26

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

TERRY v LEVENTERIS

[2011] SASCFC 26

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Vanstone)

12 April 2011

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES - GENERALLY

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE - CONTRIBUTORY NEGLIGENCE

Appeal against decision of a District Court Judge awarding a plaintiff damages with respect to injuries sustained following a four car motor vehicle collision - where Judge made finding of negligence on the defendant's part - where Judge rejected the defendant's claim that plaintiff had been contributorily negligent - where 15 month period between trial and judgment delivery - where plaintiff died following trial but before judgment delivery - where held that only heads of damage that survived plaintiff’s death were special damages, interest and past gratuitous services (those were services provided by plaintiff's husband) - whether delay should be taken into account when reviewing Judge’s findings - whether Judge erred in finding negligence on the part of the defendant and failing to find contributory negligence on the part of the plaintiff - whether Judge erred in awarding damages for past gratuitous services beyond the first three month period following the collision.

Held: Appeal dismissed - no relevant delay occasioned - in any event, detailed reasons for judgment were provided - it was open to Judge to find negligence on the part of the defendant and to dismiss claim for contribution - findings made were open to the Judge - assistance needed by the plaintiff fluctuated from time to time following the collision - overall assessment of past gratuitous services was within discretion of Judge and was fair and reasonable.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT - VOLUNTARY OBLIGATIONS

Cross appeal against decision of a District Court Judge awarding a plaintiff damages with respect to injuries sustained following a four car motor vehicle collision - whether damages awarded for past gratuitous services were inadequate - whether judgment should have been antedated to a date before the death of the plaintiff, in particular to allow for an award for pain and suffering - whether error made in award of interest. 

Held: Cross appeal dismissed - award for past gratuitous services was fair and reasonable - as there was no relevant delay on the part of the Court, the circumstances did not call for the exercise of the discretion to antedate the judgment - no error demonstrated on part of the Judge with respect to interest.

Wrongs Act 1936 (SA) s 24H and s 35A(2); Civil Liability Act 1936 (SA) s 58; District Court Rules 1992 (SA) r 84.02; District Court…

Continue reading Terry v Leventeris

Sign in free to access the full text

Details
AGLC
Terry v Leventeris [2011] SASCFC 26
Case
[2011] SASCFC 26
Decision Date

CaseChat Overview and Summary

The appeal concerned a four-car motor vehicle collision, where the District Court Judge had found the defendant negligent and awarded damages to the plaintiff, while rejecting the defendant's claim of contributory negligence. The plaintiff had died approximately 15 months after the trial but before judgment was delivered. The appeal raised questions about the heads of damage surviving the plaintiff's death, the impact of any delay in judgment delivery on the review of the trial judge's findings, and whether the trial judge erred in finding negligence and dismissing the contributory negligence claim, as well as the award for past gratuitous services. A cross-appeal also challenged the adequacy of the damages awarded for past gratuitous services and argued for the judgment to be antedated to allow for damages for pain and suffering.

The primary legal issues before the appellate court were whether the trial judge's findings of negligence and the rejection of contributory negligence were open to them, and whether the assessment of damages for past gratuitous services was fair and reasonable. Additionally, the court considered whether the judgment should have been antedated to permit an award for pain and suffering, given the plaintiff's death before judgment, and whether any error was made in the award of interest.

The appellate court dismissed the appeal, finding no relevant delay occasioned by the court that would warrant interference with the trial judge's findings of fact, particularly as detailed reasons had been provided. The court held that it was open to the trial judge to find negligence on the part of the defendant and to dismiss the claim for contributory negligence, as the findings made were supported by the evidence. Regarding damages for past gratuitous services, the court determined that the assistance required by the plaintiff fluctuated and that the overall assessment was within the trial judge's discretion, being fair and reasonable. The cross-appeal was also dismissed, with the court finding the award for past gratuitous services to be fair and reasonable. The court further held that as there was no relevant delay by the court, the circumstances did not justify antedating the judgment, and no error was demonstrated in the award of interest.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my view the assessment of damages under this head called for a broad assessment having regard to a range of uncertainties and contingencies. I consider that the Judge has made a fair assessment of all factors in arriving at his award. Cross-Appeal – Antedating Judgment On the cross-appeal, the plaintiff contended that the Judge should have exercised his discretion to antedate the judgment to a date before the death of Mrs Leventeris pursuant to rule 84.02(3) of the District Court Rules 1992 (SA).[33] Attention was drawn to the observations of the Court in Turner v London and South-Western Railway Co,[34] where it was observed that a court will allow a judgment to be entered after the death of a party nunc pro tunc; a rule which allows a court to order that a judgment operate from a date earlier than the date on which the judgment is actually made. The Court there observed that such an order would be made so as to prevent a party from being prejudiced by an act of the court, such as delay in delivering its judgment.[35] I return to this topic shortly. The provisions of the Survival of Causes of Action Act 1940 (SA) represent the abolishment of the actio personalis rule.[36] The actio personalis rule means that a personal right of action dies with the person. However, the Survival of Causes of Action Act qualifies what damages may be recovered, in particular limiting the availability of damages for some non-economic loss.[37] Accordingly, it was contended that the antedating of the judgment would have allowed the assessment of damages for non-economic loss. [33] Rule 84.02(3) relevantly provided:(3) Notwithstanding paragraphs (1) and (2), the Court may order that a judgment or order take effect as of a date earlier or later than the date fixed by these paragraphs.Now see, District Court Rules 2006 (SA), rule 226(4). [34] Turner v London and South-Western Railway Co (1874) LR 17 Eq 561.[35] Turner v London and South-Western Railway Co (1874) LR 17 Eq 561, 566.[36] Actio personalis moritur cum persona. [37] Survival of Causes of Actions Act 1940 (SA), section 3. With few minor exceptions, nunc pro tunc judgments and orders merely overcome procedural irregularities and do not alter the substantive rights of the parties.[38] The power to direct judgment nunc pro tunc after the death of a party, whether plaintiff or defendant, was confined in the common law courts to obtaining the entry of judgment after there had been a verdict or an interlocutory or other step entitling one party or the other to succeed in the cause.[39] The Court in Turner described the basis of the rule in the following way:[40]In Chitty's Archbold's Practice, Queen's Bench, the rule at law is stated thus: "The Court will in general permit a judgment to be entered nunc pro tunc, where the signing of it has been delayed by the act of the Court. Therefore, if a party die after a special verdict, or after a special case has been stated for the opinion of the Court, or after a motion in arrest of judgment, or for a new trial, or after a demurrer set down for argument, and pending the time taken for argument, or whilst the Court are considering their judgment, the Court will allow judgment to be entered up after the death nunc pro tunc in order that a party may not be prejudiced by a delay arising from the act of the Court." Then it goes on to explain that the Court will not do it where the act arises from the neglect of the party himself in completing the judgment. I need not refer to that. In support of this general statement of the law several cases are referred to, some of them of comparatively modern date. The rule at law is that judgment in certain cases may be entered nunc pro tunc, whatever that may mean.[Footnote omitted.][38] Hartley Poynton Ltd v Ali (2005) 11 VR 568, [73].[39] Hartley Poynton Ltd v Ali (2005) 11 VR 568, [76].[40] Turner v London and South-Western Railway Co (1874) LR 17 Eq 561, 566.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.