Sampco Pty Ltd v Wurth [2015] NSWCA 117

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sampco Pty Ltd v Wurth [2015] NSWCA 117 Hearing dates: 20 March 2015 Decision date: 07 May 2015 Before: Basten JA at [1]; Meagher JA at [111]; Adamson J at [112] Decision: (1)Allow the appeal and set aside order (1) made in the District Court on 13 September 2013.

(2)In lieu thereof, give judgment for the plaintiff in the amount of $73,800 to take effect on 13 September 2013. Catchwords: DAMAGES – assessment – damages awarded on basis of injury to plaintiff's foot and knee – causal relation between accident and knee injury rejected on appeal – reassessment of damages

DAMAGES – assessment – past and future gratuitous domestic assistance – after injury plaintiff's husband provided care and domestic assistance – damages awarded based on plaintiff's and husband's evidence of the level of services – whether trial judge entitled to disregard medical evidence indicating lack of need – whether past and future services satisfy statutory intensity and duration levels – whether assessment may be made by averaging hours over a period of many weeks – Civil Liability Act 2002 (NSW), s 15B

DAMAGES – assessment – domestic assistance at commercial rates – whether trial judge erred in finding that plaintiff's husband was "unlikely" to continue providing services – whether additional duties placed "strain" on marriage

NEGLIGENCE – causation – plaintiff broke a bone in her right foot as a result of a fall – whether pain in left knee reported 6 months after the accident causally related to accident – whether medical evidence supported finding of causal link in relation to the knee injury – whether injury occurred during gym session Legislation Cited: Civil Liability Act 2002 (NSW), ss 5D, 13, 15, 16 Legal Profession Act 2004 (NSW, s 338 Motor Accidents Compensation Act 1999 (NSW), s 141B Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 Gordon v Truong [2014] NSWCA 97 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Miller v Galderisi [2009] NSWCA 353 Category: Principal judgment Parties: Sampco Pty Ltd t/as The Knickerbocker Hotel (Appellant) Helen Wurth (Respondent) Representation: Counsel: Mr J E Sexton SC/Ms A Horvath (Appellant) Mr R Sheldon SC/Ms L Friedwald (Respondent)