Guides Australia Inc v McMartin

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Case Copied 65 min read
Reported Decision: (2006) Aust Torts Reports 81-828

Court of Appeal


CITATION: Guides Australia Inc v McMartin [2006] NSWCA 20
HEARING DATE(S): 19/09/05
 
JUDGMENT DATE: 
16 February 2006
JUDGMENT OF: Handley JA at 1; Young CJ in Eq at 2; Campbell AJA at 3
DECISION: 1. Appeal allowed in part; 2. Order of Judge Rolfe that the appellant indemnify the respondent in relation to the costs ordered to be paid by the respondent to the Greater Taree City Council set aside; 3. Appeal otherwise dismissed; 4 Appellant to pay ninety five per cent of the respondent’s costs of the appeal.
CATCHWORDS: Negligence - Personal injury - Pedestrian injured by fall in hole in Guides' Hall grounds - Misuse of forensic advantage - Duty of care - Civil Liability Act 2002 Divisions 2,4 and 8 - Damages - Assessment by "splitting the difference" - Civil Liability Act 2002 s 13.
LEGISLATION CITED: Civil Liability Act 2002
Motor Accidents Compensation Act 1999
CASES CITED: Brodie v Singleton Shire Council (2001) 206 CLR 512
State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 169 ALR 588
Galea v Galea (1990) 19 NSWLR 263 at 281
Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512
Bathurst City Council v Cheeseman (2004) NSWCA 308
Maviglia v Maviglia [1999] NSWCCA 188
Jones v Bartlett (2002) 205 CLR 166
Telstra Corporation Ltd v Bisley [2005] NSWCA 128
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Abalos v Australian Postal Commisssion (1990) 171 CLR 167
Fox v Percy (2003) 197 ALR 201
Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR 705
Parks v Penrith City Council [2004] NSWCA 201
Kmart Australia v McCann [2004] NSWCA 283
Macarthur District Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145
State of New South Wales v Zerafa [2005] NSWCA 187
The Nominal Defendant v Lane [2004] NSWCA 405
Electricity Commission of New South Wales v Yates [1993] 30 NSWLR
Gould v Vaggelas (1985) 157 CLR 125
Stevedoring Industry Finance Committee v Gibson (2000) 20 NSWCLR 417, [2000] NSWCA 179
Lackerstein v Jones (No 2) (1988) 93 FLR 442
PARTIES: Guides Australia Inc - Appellant
Lynette McMartin - Respondent
FILE NUMBER(S): CA 40958/04
COUNSEL: Mr S G Campbell SC for Appellant
Mrs A Katzmann SC with Mr G Rich for Respondent
SOLICITORS: Sparke Helmore (Newcastle) - Appellant
Merrick Spicer & Associates (Taree) - Respondent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 130/02
LOWER COURT JUDICIAL OFFICER: Rolfe J



                          CA 40958/04
                          DC 130/02

                          HANDLEY JA
                          YOUNG CJ in Eq
                          M W CAMPBELL AJA

                          Thursday 16 February 2006
GUIDES AUSTRALIA INC v McMARTIN
Judgment

1 HANDLEY JA: I agree with M W Campbell AJA.

2 YOUNG CJ in Eq: I also agree with M W Campbell AJA.

3 M W CAMPBELL AJA:


      INTRODUCTION

4 This is an appeal from a judgment of his Honour Judge Rolfe of the District Court in which he awarded the respondent $223,621 damages in respect of personal injury suffered by her…

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Details
Case
[2006] NSWCA 20
Decision Date

CaseChat Overview and Summary

Guides Australia Inc (the appellant) appealed a decision of the primary judge who found it liable for personal injuries sustained by Ms McMartin (the respondent) when she fell into a hole on the appellant's hall grounds. The respondent had sued the appellant for negligence, alleging a breach of duty of care which caused her injuries.

The appeal raised several legal issues, including whether the appellant owed a duty of care to the respondent in the circumstances, the extent of that duty, and whether the primary judge had erred in assessing damages. The court also considered the application of the *Civil Liability Act 2002* (NSW), particularly concerning the assessment of damages and the concept of "splitting the difference" as a method of calculation.

The appellate court found that while the appellant did owe a duty of care to the respondent, the primary judge's assessment of damages was flawed. Specifically, the court determined that the method of "splitting the difference" was not a permissible approach under the *Civil Liability Act 2002* for determining the quantum of damages. The court also addressed the appellant's "misuse of forensic advantage" in relation to costs.

Consequently, the appeal was allowed in part. The order of the primary judge requiring the appellant to indemnify the respondent for costs ordered to be paid to the Greater Taree City Council was set aside. The appeal was otherwise dismissed, and the appellant was ordered to pay ninety-five per cent of the respondent's costs of the appeal.

Orders

Orders of the court

1. Appeal allowed in part; 2. Order of Judge Rolfe that the appellant indemnify the respondent in relation to the costs ordered to be paid by the respondent to the Greater Taree City Council set aside; 3. Appeal otherwise dismissed; 4 Appellant to pay ninety five per cent of the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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