Coles Supermarkets Australia Pty Ltd v Fardous

Coles Supermarkets Australia Pty Ltd appealed to the New South Wales Court of Appeal against a judgment awarded to Mr Fardous in the District Court. The dispute concerned the assessment of damages for personal injuries sustained by Mr Fardous, with liability not being in dispute. The core of the appeal related to the extent to which Mr Fardous's pre-existing disability affected his earning capacity at the time of the injury.

The Court of Appeal was required to determine whether the District Court had erred in its assessment of Mr Fardous's earning capacity, particularly in light of his pre-existing condition. The central legal issue was how to practically assess the possibility or probability of any earning capacity being productive of income, had the accident not occurred, when the claimant already had a pre-existing disability.

The Court of Appeal found that the District Court had made an error in its assessment of damages. It reasoned that a proper assessment of earning capacity, in the context of a pre-existing disability, required a realistic evaluation of the likelihood of that capacity yielding income. The Court indicated that the judgment awarded was excessive and that the parties should attempt to agree on a revised figure, or otherwise provide submissions for the Court to determine the appropriate variation.

Consequently, the Court of Appeal allowed the appeal, setting aside the original judgment of $354,965. The parties were directed to lodge a consent order varying the judgment amount in accordance with the Court's reasons, or to provide proposed orders and submissions if agreement could not be reached. The appellant was ordered to pay 65% of the respondent's costs of the appeal.