Woolworths Ltd v Arnold - [2005] NSWCA 21

CITATION:
Woolworths Ltd v Arnold [2005] NSWCA 21

HEARING DATE(S):
15/02/2005

JUDGMENT DATE:

25 February 2005

JUDGMENT OF:
Hodgson JA at 1; Brownie AJA at 2; Hunt AJA at 3

DECISION:
1. Leave to appeal granted 2. Appeal dismissed 3. The claimant to pay the opponent's costs of the whole appeal 4. The claimant to file a formal Notice of Appeal within 28 days.

CATCHWORDS:
Claim for damages following fall in defendant's supermarket on chicken fluids on floor - whether plaintiff guilty of contributory negligence - whether damages excessive - disputed diagnosis of reflex sympathetic dystrophy developed as a complication of injuries to the plaintiff's ankle in the fall - judge's criticism of defendant's medical witness as being "more into polemics than a desire to objectively reach the truth of the matter".

LEGISLATION CITED:
Motor Accidents Act 1988

CASES CITED:
Jones v Dunkel (1959) 10 CLR 298
Hadid v Redpath [2001] NSWCA 416

PARTIES:
Woolworths Ltd
Tracey Arnold

FILE NUMBER(S):
CA 40193/2004

COUNSEL:
M Bozic SC Claimant
P Webb QC / N Canosa Opponent

SOLICITORS:
Herbert Geer & Rundle Claimant
Philip Lewis Opponent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
340/2001

LOWER COURT JUDICIAL OFFICER:
Phelan DCJ

CA40193/04

HODGSON JA
BROWNIE A-JA
HUNT A-JA
Friday, 25 February 2005

WOOLWORTHS LTD v ARNOLD

Judgment

1 HODGSON JA: I agree with Hunt A-JA.

2 BROWNIE A-JA: I agree with Hunt A-JA.

3 HUNT A-JA: Woolworths Ltd was the defendant in the District Court in an action brought by Tracey Arnold for damages which, she claimed, resulted from her slipping on the floor of the defendant’s supermarket at Shoalhaven on 10 March 2001. The defendant ultimately admitted lability for negligence, but alleged that the plaintiff was guilty of contributory negligence and continued to dispute the damages claimed.

4 The hearing took place before Judge J B Phelan over three days in August 2002 and February 2003. Judgment was not given until February 2004. The judge held that there had been no contributory negligence on the part of the plaintiff and that damages should be awarded to her in accordance with various assessments he made totalling $511,231.70, plus a sum for the plaintiff’s loss of superannuation benefits which was left to the parties to agree. (I refer at pars 62-63 to the error made by the judge when he stated the total to be $517,133.)

5 The defendant, as the claimant in this Court, has sought leave to appeal on the basis that the difference between the amount awarded and the amount which should have been awarded cannot confidently be assessed as being at least $100,000. The plaintiff, as the opponent in this Court, has opposed the grant of leave to appeal (notwithstanding that she originally submitted to the orders of the Court). The application for leave has been determined concurrently with the argument on the appeal itself.

6 The plaintiff gave evidence that, in the company of her two children, she purchased some chicken at the delicatessen counter…

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 Woolworths Ltd v Arnold

Details

AGLC: Woolworths Ltd v Arnold [2005] NSWCA 21
Case: [2005] NSWCA 21
Decision Date: 25 February 2005

CaseChat Overview and Summary

Woolworths Ltd appealed to the Court of Appeal of New South Wales against a judgment awarded to Ms. Arnold, who had suffered injuries after slipping on chicken fluids in a Woolworths supermarket. The primary dispute concerned whether Ms. Arnold was contributorily negligent and whether the damages awarded by the trial judge were excessive, particularly in light of a disputed diagnosis of reflex sympathetic dystrophy as a complication of her ankle injuries sustained in the fall.

The Court of Appeal was required to determine two main issues: firstly, whether the trial judge erred in finding that Ms. Arnold was not guilty of contributory negligence, and secondly, whether the quantum of damages awarded was excessive. A subsidiary issue arose from the trial judge's strong criticism of one of the defendant's medical witnesses, which the appellant sought to rely upon in its appeal.

In dismissing the appeal, the Court of Appeal upheld the trial judge's findings. The court found no error in the conclusion that Ms. Arnold was not contributorily negligent, accepting that she had not failed to take reasonable care for her own safety. Furthermore, the court found that the damages awarded were not excessive, considering the injuries sustained and the subsequent diagnosis of reflex sympathetic dystrophy. The criticism of the medical witness, while noted, did not lead the appellate court to interfere with the primary judge's assessment of the evidence or the damages awarded.

The Court of Appeal granted leave to appeal but ultimately dismissed the appeal. Ms. Arnold was ordered to pay Woolworths Ltd's costs of the appeal, and was given 28 days to file a formal Notice of Appeal.

Orders

Orders of the court

1. Leave to appeal granted 2. Appeal dismissed 3. The claimant to pay the opponent's costs of the whole appeal 4. The claimant to file a formal Notice of Appeal within 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Woolworths Ltd v Arnold [2005] NSWCA 21
HEARING DATE(S):	15/02/2005
JUDGMENT DATE:	25 February 2005
JUDGMENT OF:	Hodgson JA at 1; Brownie AJA at 2; Hunt AJA at 3
DECISION:	1. Leave to appeal granted 2. Appeal dismissed 3. The claimant to pay the opponent's costs of the whole appeal 4. The claimant to file a formal Notice of Appeal within 28 days.

CATCHWORDS:	Claim for damages following fall in defendant's supermarket on chicken fluids on floor - whether plaintiff guilty of contributory negligence - whether damages excessive - disputed diagnosis of reflex sympathetic dystrophy developed as a complication of injuries to the plaintiff's ankle in the fall - judge's criticism of defendant's medical witness as being "more into polemics than a desire to objectively reach the truth of the matter".
LEGISLATION CITED:	Motor Accidents Act 1988
CASES CITED:	Jones v Dunkel (1959) 10 CLR 298 Hadid v Redpath [2001] NSWCA 416
PARTIES:	Woolworths Ltd Tracey Arnold
FILE NUMBER(S):	CA 40193/2004
COUNSEL:	M Bozic SC Claimant P Webb QC / N Canosa Opponent
SOLICITORS:	Herbert Geer & Rundle Claimant Philip Lewis Opponent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	340/2001
LOWER COURT JUDICIAL OFFICER:	Phelan DCJ