THE COUNCIL OF THE MUNICIPALITY OF SHELLHARBOUR v EZZI [1991] NSWCA 63

THE COUNCIL OF THE MUNICIPALITY OF SHELLHARBOUR v EZZI

SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

PRIESTLEY, MEAGHER and HANDLEY JJA 30 October and 1 November 1991, 20 December 1991

[1991] NSWCA 63 Occupier's liability — damages.

OCCUPIER'S LIABILITY — Uneven surface caused by movement of concrete slabs creating a foreseeable preventable risk — Small difficulty, delay and expense in removing risk. Held. The appellant was negligent in failing to remove the risk.

DAMAGES — Whether trial judge failed to properly allow for pre-existing disability in awarding general damages — Effect of terminal cancer. Held The trial judge had failed to properly allow for the effects of the plaintiff's pre-existing condition and since the effects of the accident had by the date of the trial been largely overtaken by the terminal cancer there should be a reduction in the award of general damages.

Purkess v Crittenden (1965) 114 CLR 64

Wyong Shire Council v Shirt (1980) 146 CLR 40 Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 Heskell v Continental Express [1950] 1 All ER 1033 Jobling v Associated Dairies Pty Ltd [1982] AC 794.

Priestley JA I have had the benefit of reading in draft the reasons of Handley JA in this appeal. Except as to one matter I agree fully with his reasons.

The one matter on which I have formed a different opinion from Handley JA concerns the element in the judgment figure allowed by the trial judge for pain, suffering and loss of the amenities of life. To a considerable extent this is a matter of impression on the relevant materials. Although I see force in the considerations taken into account by Handley JA in reaching his conclusion that the trial judge was in error on this matter, it does not strike me, even taking into account those considerations, that the figure of $30,000 which the trial judge thought appropriate was outside the range of figures within which a judge could reasonably operate when considering the respondent's particular circumstances.