Woolworths Ltd v Mohamad - [2008] NSWCA 336

New South Wales

Court of Appeal

CITATION: Woolworths Ltd v Mohamad [2008] NSWCA 336

HEARING DATE(S): 25 November 2008

JUDGMENT DATE:
4 December 2008

JUDGMENT OF: Tobias JA at 1; Bell JA at 74

DECISION: (a) Appeal allowed in part.
(b) Cross-appeal allowed in part.
(c) Set aside the judgment of Judge Garling in the sum of $332,896 made on 27 November 2007 and substitute therefor judgment for the respondent in the sum of $336,268, such judgment to date from 27 November 2007.
(d) The appellant to pay 80% of the respondent’s costs of the appeal.
(e) Each party to pay his or its own costs of the cross-appeal.

CATCHWORDS: DAMAGES – Appeal – Personal injury – Assessment of past economic loss – Assessment of future economic loss – Assessment of future medical expenses – Failure to award interest on past economic loss

LEGISLATION CITED: Not applicable

CATEGORY: Principal judgment

CASES CITED: Kallouf v Middis [2008] NSWCA 61
Rabay v Bristow [2005] NSWCA 199

PARTIES: Woolworths Ltd
Michael Mohamad

FILE NUMBER(S): CA 40877/07

COUNSEL: A: P Greenwood / D Tynan
R: H Kelly SC / J Callaway

SOLICITORS: A: Moray & Agnew, Sydney
R: Owen Hodge Lawyers, Hurstville

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3534/06

LOWER COURT JUDICIAL OFFICER: Garling J

LOWER COURT DATE OF DECISION: 27 November 2007

CA 40877/2007
DC 3534/2006

TOBIAS JA
BELL JA
Thursday 4 December 2008

WOOLWORTHS LIMITED v MICHAEL MOHAMAD

Judgment

1 TOBIAS JA: The respondent, Michael Mohamad, was injured on 12 February 2005 when he slipped and fell at the premises of the appellant, Woolworths Limited. He sustained injuries to his lower back, left elbow, left hip, left shoulder and wrist. He instituted proceedings in the District Court against the appellant for damages.

2 His Honour Judge Garling heard the proceedings. On 27 November 2007 he found that the appellant was negligent and thus liable for the respondent’s injuries. His Honour assessed the respondent’s damages in the sum of $332,896 and entered judgment in his favour for that sum. The appellant appeals against so much of the judgment as relates to the primary judge’s assessment of past and future economic loss and future medical expenses.

The relevant findings of the primary judge

3 The relevant findings of the primary judge can be summarised as follows:

(a) The respondent sustained soft tissue injury to the left elbow, muscular-ligamentous strain to the lumbar spine, micro-trabecular fracture of the L5 vertebral body, post-traumatic L5/S1 intravertebral disc annular tear, and adjustment disorder with anxiety and depressed mood;

(b) At the time of trial the respondent was nearly 46 years of age. He had sustained pain and disability which he would continue to suffer to some extent, although he had made significant improvement since he undertook a pain management course which concluded on 18 November 2006;

(c) The respondent had had an excellent work history and had worked fairly continuously since arriving in Australia in 1974. He had worked as a security guard,…

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 Mohamad

Details

AGLC: Woolworths Ltd v Mohamad [2008] NSWCA 336
Case: [2008] NSWCA 336
Decision Date: 4 December 2008

CaseChat Overview and Summary

Woolworths Ltd appealed to the New South Wales Court of Appeal against a judgment of Judge Garling in the District Court of New South Wales. The original proceedings concerned a claim for damages for personal injury brought by Mr Mohamad against Woolworths Ltd. The primary dispute revolved around the assessment of various heads of damages, including past and future economic loss, and future medical expenses.

The Court of Appeal was required to determine whether Judge Garling had erred in his assessment of these damages. Specifically, the court considered the adequacy of the award for past economic loss, the calculation of future economic loss, and the quantum of future medical expenses. A further issue was whether the primary judge had failed to award interest on the sum awarded for past economic loss, as permitted by the relevant legislation.

In its reasoning, the Court of Appeal reviewed the evidence presented at trial concerning Mr Mohamad's injuries and their impact on his earning capacity. The court applied established principles for assessing economic loss, considering factors such as the plaintiff's pre-injury earnings, the likelihood of future employment, and the appropriate discount rate for future losses. The court also considered the evidence regarding the need for and cost of future medical treatment. The court found that there had been an error in the calculation of past economic loss and that interest should have been awarded on that component of the damages.

The appeal was allowed in part, and the cross-appeal was also allowed in part. The judgment of the District Court was set aside and substituted with a new judgment for Mr Mohamad in a slightly increased sum, to date from the original judgment. The court also made orders regarding the costs of the appeal and the cross-appeal.

Orders

Orders of the court

(a) Appeal allowed in part. (b) Cross-appeal allowed in part. (c) Set aside the judgment of Judge Garling in the sum of $332,896 made on 27 November 2007 and substitute therefor judgment for the respondent in the sum of $336,268, such judgment to date from 27 November 2007. (d) The appellant to pay 80% of the respondent's costs of the appeal. (e) Each party to pay his or its own costs of the cross-appeal.

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 Mohamad [2008] NSWCA 336
HEARING DATE(S):	25 November 2008
JUDGMENT DATE:	4 December 2008
JUDGMENT OF:	Tobias JA at 1; Bell JA at 74
DECISION:	(a) Appeal allowed in part. (b) Cross-appeal allowed in part. (c) Set aside the judgment of Judge Garling in the sum of $332,896 made on 27 November 2007 and substitute therefor judgment for the respondent in the sum of $336,268, such judgment to date from 27 November 2007. (d) The appellant to pay 80% of the respondent’s costs of the appeal. (e) Each party to pay his or its own costs of the cross-appeal.
CATCHWORDS:	DAMAGES – Appeal – Personal injury – Assessment of past economic loss – Assessment of future economic loss – Assessment of future medical expenses – Failure to award interest on past economic loss
LEGISLATION CITED:	Not applicable
CATEGORY:	Principal judgment
CASES CITED:	Kallouf v Middis [2008] NSWCA 61 Rabay v Bristow [2005] NSWCA 199
PARTIES:	Woolworths Ltd Michael Mohamad
FILE NUMBER(S):	CA 40877/07
COUNSEL:	A: P Greenwood / D Tynan R: H Kelly SC / J Callaway
SOLICITORS:	A: Moray & Agnew, Sydney R: Owen Hodge Lawyers, Hurstville
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3534/06
LOWER COURT JUDICIAL OFFICER:	Garling J
LOWER COURT DATE OF DECISION:	27 November 2007