Spooner-Hart Prosthetics Pty Ltd v Jones [2005] NSWCA 2

New South Wales Court of Appeal

Spooner-Hart Prosthetics Pty Ltd v Jones [2005] NSWCA 2 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10 September 2004

JUDGMENT DATE: 3 February 2005

JUDGMENT OF: Mason P at 1; Giles JA at 2; McColl JA at 48

DECISION: (1) Appeal allowed; (2) Set aside the verdict and judgment for the plaintiff and in lieu thereof verdict and judgment for the defendant; (3) Plaintiff to pay the defendant's costs of the proceedings in the District Court and of the appeal and to have a certificate under the Suitors Fund Act if otherwise qualified.

CATCHWORDS: Negligence - repairer of leg callipers - judge found negligence in failure to follow up application for health service approval of repairs - not within case as pleaded or conducted - no duty to do so. ND

Spooner-Hart Prosthetics Pty Ltd - Appellant PARTIES: Allan Arthur Jones - Respondent

FILE NUMBER(S): CA 40712/03

D J Fagan SC & P Frame - Appellant COUNSEL: B J Gross QC & D J Williams - Respondent

Hunt & Hunt - Appellant SOLICITORS: Matthews Williams, Forbes - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 29/01(Forbes)

LOWER COURT JUDICIAL OFFICER: Christie DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40712/03 DC 29/01 (Forbes)

MASON P GILES JA McCOLL JA

Thursday 3 February 2005 SPOONER-HART PROSTHETICS PTY LTD v JONES Judgment 1 MASON P: I agree with Giles JA. 2 GILES JA: The respondent contracted polio as an infant, and thereafter wore callipers on his legs. (Callipers is also written calipers; I adopt the dictionary preference.) The appellant made and repaired orthotic devices, including leg callipers. From at least the early 1990's it supplied and repaired the respondent's callipers. 3 On 5 February 2000 the respondent fell and was injured when his left leg calliper gave way at the knee joint. He claimed damages from the appellant, and on 22 July 2003 Christie DCJ found a verdict and gave judgment in his favour for $50,000. By leave granted on 5 March 2004, the appellant appealed on liability and in relation to payment of costs following a re-opening of the respondent's case.