Guides Australia Inc v McMartin

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.