Abraham v St Mark's Orthodox Coptic College - [2006] NSWSC 1271

CITATION: Abraham v St Mark’s Orthodox Coptic College & anor [2006] NSWSC 1271
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13/11/2006

JUDGMENT DATE :
29 November 2006

JURISDICTION: Supreme Court

JUDGMENT OF: Rothman J

DECISION: Further to the orders made on 24 October 2006: (iv) the cross-claim is dismissed; (v) the cross-claimant shall pay the costs of the cross-defendant of and incidental to the proceedings, as agreed or assessed, which costs shall be payable forthwith; (vi) the defendants, jointly and severally, shall pay the plaintiff’s costs of and incidental to the proceedings, including the costs of the assessment of damage thus far incurred, as agreed or assessed, which costs shall be payable forthwith; (vii) so much of the proceedings that remain shall stand over to the next call-over.

CATCHWORDS: CIVIL LAW - COSTS - liability determined - contributory negligence determined - damages to be assessed in future - split proceedings - costs and disbursements of the preparation of damages aspect of litigation are costs which follow the event - cross-claim dismissed - indemnity costs of cross-defendant - Offer of Compromise not a genuine offer of compromise - costs not awarded on an indemnity basis.

CASES CITED: Abraham BHT Abraham v St Mark's Orthodox Coptic College and Ors [2006] NSWSC 1107
Hahn v Conley (1971) 126 CLR 276
R v Davies & Partridge [2005] NSWSC 324
Robertson v Swincer (1989) 52 SASR 356

PARTIES: P: Christopher Abraham BHT Nareem Abraham
D1: St Mark’s Orthodox Coptic College
D2: Coptic Orthodox Church (NSW) Property Trust

FILE NUMBER(S): SC 20186/2002

COUNSEL: P: J P Gormly SC & B Dooley
D2/Cross-Claimant: S G Campbell SC & P Stockley
Cross-Defendant: L T Grey

SOLICITORS: P: Paul Connery
D: N Studdert

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

ROTHMAN J

29 November 2006

20186/2002

ABRAHAM v ST MARKS ORTHODOX COPTIC COLLEGE & 1 OTHER

JUDGMENT

1 HIS HONOUR: This judgment deals with issues agitated between the parties on the question of costs.

2 On 24 October 2006, I published reasons for judgment on liability in which I ordered that the first and second defendants be jointly and severally liable in negligence to the plaintiff for the damage suffered by the plaintiff in his fall from a first-floor balustrade on the premises of the College conducted by the defendants. I also found contributory negligence and reduced the amount of damage by 10 percent on account thereof. That aspect of the judgment, and reasons, dealt only with liability. Damages are to be assessed on or after the plaintiff, who is now 15 years of age, reaches the age of 18.

3 Further, the reasons for judgment and orders dealt with the cross-claim against the father of the plaintiff for conduct said to be negligent and in breach of a duty care owed by parents to their child. The orders made on 24 October 2006 included a verdict…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWSC 1271
Decision Date: 29 November 2006

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Abraham v St Mark's Orthodox Coptic College revolved around a dispute concerning the liability for damages to a student injured during a school event. The plaintiff, Abraham, sought compensation for injuries sustained during a school-organised event, while the defendant, St Mark's Orthodox Coptic College, contested the liability and sought to mitigate the damages. The court was tasked with determining the extent of the school's liability, the applicability of contributory negligence, and the costs associated with the litigation process.

The primary legal issues before the court included the determination of liability, the degree of contributory negligence by the plaintiff, and the appropriate allocation of costs between the parties. The court had to assess whether the plaintiff's injuries were a direct result of the defendant's negligence and whether the plaintiff's own actions contributed to the incident. Additionally, the court needed to decide on the appropriate costs for the preparation of damages, considering the split nature of the proceedings and the implications for indemnity costs.

The court concluded that the plaintiff's injuries were indeed a result of the defendant's negligence, but the plaintiff's contributory negligence was significant. Consequently, the damages would be assessed at a future date. Regarding costs, the court ruled that the costs and disbursements related to the preparation of the damages aspect of the litigation were to follow the event. The cross-claim was dismissed, and the cross-defendant's indemnity costs were denied as the Offer of Compromise was not genuine. The court further determined that costs should not be awarded on an indemnity basis, as the Offer of Compromise did not meet the criteria for such an award.

In conclusion, the court found in favour of the plaintiff regarding liability but reduced the damages due to contributory negligence. Costs associated with the preparation of damages were ordered to follow the event, and the cross-claim was dismissed without indemnity costs. The court's decision provided clarity on the allocation of costs and the procedural steps moving forward, ensuring a fair resolution of the financial implications for both parties.

Orders