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…
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- AGLC
- Terry v Leventeris [2011] SASCFC 26
- Case
- [2011] SASCFC 26
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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