Dailhou v Kelly; State of NSW v Kelly (No 2)

The appeal was brought by the plaintiff, Dailhou, against the defendant, Kelly, and the State of New South Wales. The plaintiff claimed damages for injuries sustained after falling down a flight of stairs in a bookshop. The trial judge dismissed the claim, and the plaintiff sought to appeal. The defendants argued that the appeal should be dismissed, and the plaintiff was not credible in his account of the incident. The State of New South Wales argued that it was not liable for the injuries as they were not caused by a negligent act or omission attributable to it.

The legal issues before the court were whether the plaintiff had established how or why he fell down the stairs, whether the defendants were negligent, and whether the plaintiff was a credible witness. The court also considered the issue of damages and whether the plaintiff was able to claim for economic loss. Finally, the court considered the issue of workers' compensation and whether the workers compensation insurer was obliged to establish that compensation paid was referable to the putative tortious incident.

The court held that the plaintiff had not established how or why he fell down the stairs, and there was no evidence of any negligent act or omission attributable to the defendants. The court found that the plaintiff was not a credible witness and that his account of the incident was not reliable. The court also found that the plaintiff's economic loss was relatively modest, and he was able to travel overseas not long after the fall. The court held that the plaintiff had no real prospects of becoming a school principal. Finally, the court held that the workers compensation insurer was obliged to establish that compensation paid was referable to the putative tortious incident, and it was not sufficient that it allocated the expense to an earlier claim where there was a subsequent work-related injury to the same part of the body not causally related to the subject incident.

The appeal was dismissed, and the orders of the trial judge were affirmed. The plaintiff was ordered to pay the costs of the appeal.