THE PREMIER GROUP PTY LTD v LIPPIS [2007] NSWCA 36 | Case summary

15 February 2007 THE PREMIER GROUP PTY LTD v LIPPIS Judgment 1 IPP JA: This appeal concerns an action for damages for personal injuries. The trial was heard before Truss DCJ. The appellant was the defendant. The respondent was the plaintiff. Her Honour held for the respondent (albeit finding that he was guilty of contributory negligence and apportioning his damages by 10%). She ordered damages in his favour in the amount of $313,175 with costs. Her Honour gave a full detailed and reasoned judgment. It was a model of its type. 2 The argument raised by the appellant in its written submissions was in effect a regurgitation of what had been argued at the trial. I was tempted simply to deliver a judgment saying that I am not persuaded that anything said by her Honour was wrong, but Mr Campbell SC who, together with Mr Quinlivan, appeared for the appellant, delivered a careful and thorough argument on behalf of the appellant and in deference to what he has submitted I propose to give very brief additional reasons for my conclusion. 3 The injuries that gave rise to the respondent's claim occurred when he descended from a prime mover he had parked at the appellant's premises. The respondent testified at trial that he had walked down the three steps on the side of the prime mover and shortly after coming onto the ground placed his foot in an open grate in a drain, tripped and fell. The appellant contended that the respondent jumped from the top of the prime mover and his jump in effect was the prime cause of the fall, although the appellant did not dispute that he had at some point landed in the open drain and had fallen. 4 The judge found that the open grate was a trap and that the appellant was negligent in not replacing the grate. She found that the open grate was not obvious. 5 The place where the fall occurred was a parking area at the appellant's premises for vehicles offloading containers. It was not a public place. Rather, it was internal commercial premises. People would be expected to walk about in the vicinity. There was no reason for anyone in the respondent's position to expect there to be a hole in the ground as, in fact, there was at the time. The challenge to the finding that the open grate was not obvious must fail. 6 As I have said, the principal issue was whether the respondent climbed down or jumped off the prime mover. Unusually, the trial judge was assisted by a contemporaneous video film of the incident. At the time of the fall, closed circuit security television was operating and it captured what occurred. The quality of the film is not good. It is not easy to discern precisely what happened. The trial judge found, after viewing the film, that it supported the respondent's case that he descended by way of the three steps at the side of the prime mover. That is, he did not jump. The main argument urged on this court by Mr Campbell was that her Honour was wrong in this finding. He replayed the film to the court. Having observed it, I am not persuaded that her Honour was wrong. 7 In any event, even if the respondent did jump that says nothing about the negligence of the appellant, which in my opinion is plain. 8 Mr Campbell addressed the question of apportionment and argued that the ten per cent deduction found by her Honour was far too low. In my opinion the appellant was fortunate indeed to get any apportionment in its favour (even on the assumption that he jumped). The degree of contributory negligence involved - even if he jumped - was slight. The missing grate was not something that could readily have been observed or foreseen. The negligence of the appellant far outweighed that of the respondent. I am not persuaded by Mr Campbell's submissions in this connection. 9 In regard to the quantum of damages, Mr Campbell submitted that her Honour did not take into account certain pre-existing conditions that affected both the award for general damages and economic loss. Mr Campbell submitted that her Honour had ignored the effect of the principles laid down in Malec v J C Hutton Pty Limited (1990) 169 CLR 638; see in this regard the discussion in Seltsam Pty Limited v Ghaleb [2005] NSWCA 208. 10 I would not uphold these submissions for reasons that can briefly be stated. 11 Firstly, there is no reference to an argument based on Malec in the grounds of appeal. Nor is there any such reference in the appellant's written submissions. I have referred to the careful judgment of her Honour in which she made no reference to Malec. It is by no means clear that this argument was raised at the trial. 12 Secondly, the period of time giving rise to the past economic loss as found was small and the award for future economic loss was relatively of a significantly lesser amount than one often finds in cases of this kind. 13 Thirdly, her Honour was entitled to find that the respondent had not established the evidential onus on it in regard to pre-existing conditions. 14 Mr Campbell made what I understand to be three points when dealing with past economic loss. Firstly, he submitted that there was pre-existing gastro-oesophageal disease and this should have been taken into account. Secondly, he argued that there was pre-existing post-traumatic stress disorder, and regard should have been had to that. Thirdly, he submitted that, during the period of past economic loss, there was a prospect that the respondent's business would fail and this bore on the loss (but was not taken into account). 15 Her Honour found that at least a major cause of the pre-existing gastric disease was the injuries that the respondent suffered in the accident. I repeat that the period of past economic loss was not long. In these circumstances, I do not accept that the disease had any significant impact on past economic loss. 16 As regards the pre-existing post-traumatic stress disorder, there was evidence - that appears to have been accepted by her Honour generally - that this disease had cleared up before the accident. On that basis her Honour was entitled to disregard it. 17 The prospect that the business would fail was closely linked with the injuries that the respondent suffered in his fall. Further, I am not persuaded that stressors extraneous to the problems caused by the fall did not contribute to the problems of the business. I am not persuaded that the prospect of business failure should reduce the damages the judge awarded. 18 It is common ground that the argument relating to the gastro-oesophageal disease has no bearing on future economic loss, but the other factors remain. However, the comments I have made to those other factors when dealing with past economic loss apply equally, in substance, to the award for future economic loss. 19 Mr Campbell referred to evidence that the prognosis for surgery to the respondent's ankle was "quite guardedly good" and he submitted that this should have been taken into account. I am not persuaded that her Honour did not have regard to it. In fact on my reading of the judgment, she did. She made express reference to the prognosis at an appropriate stage in her judgment when dealing with future economic loss and there is no reason to believe that she did not bear this factor in mind. When making her award she reduced the basic amount of wages or income that the respondent would have earned when calculating future economic loss and there is no reason to believe that, in doing so, she did not take into account the guardedly good prognosis for the ankle surgery. 20 There was some reference to chest injury having been suffered by the respondent, but this was expressly taken into account by her Honour at the appropriate stage. 21 I would dismiss the appeal with costs, not being persuaded that her Honour was in any respect wrong in her reasons.

23 CAMPBELL: I think I overlooked it your Honour but having heard the reasons delivered just now by Ipp JA I wouldn't wish to say anything about it. 24 MASON P: I agree. 25 There was one matter that Mr Campbell raised at the outset of his submissions and it was, my words not his, that we are not really in Fox v Percy (2003) 214 CLR 118 country because the central findings were not based on demeanour. I think when you have regard to what her Honour said at paras 7, 12, 13, 14, 29 and 52 there is ample evidence that her Honour paid close regard to demeanour issues, both regarding the respondent and his wife. Her Honour, most appropriately if I may say so recognised that demeanour findings are not the be all and end all and need to be tested against the probabilities and the objective material. In doing so she cited the remarks of Ipp JA in Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187. 26 It follows that the appellant did have to overcome the usual barriers in attacking an essentially credit based finding by the trial judge. Like Ipp JA, I was completely unpersuaded that the challenge was a successful one in the circumstances. 27 BASTEN JA: I agree with the order proposed by Justice Ipp and with his Honour's reasons and with the further reasons of the President. Despite what Mr Campbell now says in relation to ground 5 concerning the admissibility of evidence, I would have added that the issues raised in the documents which were excluded were entirely collateral. They went only to credit and were contentious and in my view her Honour correctly applied s 135 of the Evidence Act 1995 (NSW) in exercising a discretionary power to exclude those documents. 28 I agree the appeal should be dismissed with costs. 29 MASON P: That is the order of the Court. **********

THE PREMIER GROUP PTY LTD v LIPPIS

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