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 2006JUDGMENT 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 1999CASES 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 442PARTIES: Guides Australia Inc - Appellant
Lynette McMartin - RespondentFILE NUMBER(S): CA 40958/04 COUNSEL: Mr S G Campbell SC for Appellant
Mrs A Katzmann SC with Mr G Rich for RespondentSOLICITORS: Sparke Helmore (Newcastle) - Appellant
Merrick Spicer & Associates (Taree) - RespondentLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 130/02 LOWER COURT JUDICIAL OFFICER: Rolfe J
CA 40958/04
DC 130/02Thursday 16 February 2006HANDLEY JA
YOUNG CJ in Eq
M W CAMPBELL AJA
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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- Case
- [2006] NSWCA 20
- Decision Date
CaseChat Overview and Summary
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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