Elite Protective Personnel Pty Ltd & Anor v Salmon [2007] NSWCA 322

New South Wales Court of Appeal

CITATION: Elite Protective Personnel Pty Ltd & Anor v Salmon [2007] NSWCA 322

HEARING DATE(S): 22 March 2007

JUDGMENT DATE: 14 November 2007

JUDGMENT OF: Beazley JA at 1; McColl JA at 8; Basten JA at 120

DECISION: 1. Appeal allowed in part. 2.Set aside the judgment of Phelan DCJ of 14 September 2005. 3. In lieu thereof substitute a judgment for the respondent in the amount of $278,881.57. 4.Order the appellants to pay the respondent's costs of the trial on the ordinary basis. 5. Grant liberty to the parties to submit consent amended short minutes of order correcting order 3 within 14 days of judgment. 6. In the event the parties cannot reach agreement as to the quantum of order 3, grant liberty to the parties to submit written contentions concerning the correct calculation within 14 days of judgment. 7.Respondent to pay the costs of the appeal.

CATCHWORDS: NEGLIGENCE – contributory negligence – plaintiff failed to leave nightclub when asked by security guard – plaimtiff's elbow broken by security guard in course of being ejected – whether failed to take reasonable care for his own safety – held no - NEGLIGENCE – contributory negligence – whether defence of contributory negligence available in the case of an intentional tort – principles discussed - DAMAGES – assessment – whether excessive award for non-economic loss and economic loss – awards flawed by primary judge's failure to appreciate significance of plaintiff's decision not to resume pre-injury work - damages re-assessed - COSTS – costs of trial – indemnity costs – Calderbank offer of settlement expressed to be inclusive of costs – whether such an offer can be the basis of an award of indemnity costs – no rule that offers inclusive of costs unable to be the basis of such an award – depends on circumstances of the case.