Monie v Commonwealth of Australia [2007] NSWCA 230

Appeal Outcome: Special leave application refused with costs by the High Court - 16 May 2008

New South Wales Court of Appeal

CITATION: Monie v Commonwealth of Australia [2007] NSWCA 230 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17 & 18 May 2007

JUDGMENT DATE: 3 September 2007

JUDGMENT OF: Mason P at 1; Beazley JA at 2; Campbell JA at 3

DECISION: In substance, appeal allowed, verdict for Peter Monie for $238,750 plus interest; verdict for Jennifer Monie for $50,000 plus interest; new trial for Sam Monie on causation and quantum of damages (if any) excluding economic loss. Further submissions to be made concerning costs.

CATCHWORDS: TORTS – negligence – essentials of action for negligence – duty of care – duty of care owed by Commonwealth Employment Service to prospective employer – where prospective employee referred by Commonwealth Employment Service was ex-offender – where Commonwealth Employment Service aware that prospective employee was ex-offender – where Commonwealth Employment Service failed to inform prospective employer that prospective employee was ex-offender – where employee subsequently shot employer – whether Commonwealth liable for damages suffered by employer - TORTS – negligence – voluntary assumption of risk (volenti not fit injuria) – requirements for finding of voluntary assumption of risk – where employer consented to having an ex-offender work and live on property – whether employer voluntarily consented to risk of being shot by employee - Smith v Baker & Sons [1891] AC 325 - Letang v Ottawa Electric Railway Company [1926] AC 725 - Osborne v London and North Western Railway Company (1888) 21 QBD 220 - Randwick City Council v Muzic [2006] NSWCA 66, applied - TORTS – negligence – contributory negligence – elements of contributory negligence – causation – where employer failed to adequately interview prospective employee – where employee subsequently shot employer – whether employer's failure to adequately interview was causative of damages suffered - TORTS – negligence – damages – assessment of general damages – past loss – interest on past loss – future loss – date as at which assessment of damages should occur on appeal - TORTS – negligence – damages – psychiatric illness – whether recognisable psychiatric illness suffered - Tame v New South Wales - Annetts v Australian Stations Pty Limited (2002) 211 CLR 317, followed - TORTS – negligence – damages – economic loss – whether negligent act causative of economic loss sustained by farm business - TORTS – negligence – damages – causation – where damage caused by combination of negligent act and other factors – whether negligent act causative of damage - March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, followed - COURTS AND JUDGES – pleadings – statement of claim – case abandoned – where statement of claim amended – whether part of case abandoned by amendment of statement of claim - COURTS AND JUDGES – witnesses – credit finding – adverse credit finding by trial judge – role of appellate court - APPEALS – where trial judge erred in making adverse credit findings – where adverse credit findings resulted in failure of plaintiff's case – role of appellate court – need for retrial