Kappadoukas v Fransepp Pty Ltd

[2006] NSWCA 366

NEW SOUTH WALES COURT OF APPEAL

CITATION:      KAPPADOUKAS v FRANSEPP PTY LTD [2006]  NSWCA 366

FILE NUMBER(S):
40025/05

HEARING DATE(S):               27 April 2006

DECISION DATE:     15/12/2006

PARTIES:
Anastasios Kappadoukas - Appellant
Fransepp Pty Ltd - Respondent

JUDGMENT OF:       Tobias JA Basten JA Rothman J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 05898 of 1999

LOWER COURT JUDICIAL OFFICER:     Rein DCJ

COUNSEL:
Ms S. Norton SC/Ms M. Fraser - Appellant
Mr J.L. Sharpe - Respondent

SOLICITORS:
Peter Baker, Solicitor - Appellant
Stacks/Goudkamp Pty Ltd - Respondent

CATCHWORDS:
EVIDENCE – whether there were inconsistencies in the evidence – whether the trial judge failed to address the corroborative evidence – whether the trial judge failed to deal with probable scenarios that are consistent with all the evidence adduced -
CONTRIBUTORY NEGLIGENCE – whether plaintiff was ‘careless’ in going onto the first floor in the dark – whether such carelessness was a contributing factor to the accident -
DAMAGES – future economic loss – whether diminution in earning capacity has had and will continue to have an adverse effect on his actual earning which will result in economic loss – whether there should be an allowance for future domestic assistance

LEGISLATION CITED:
Uniform Civil Procedure Act 2005, s 101

DECISION:
(i)  Appeal allowed;
(ii)  Judgment of Rein DCJ of 17 December 2004 be set aside;
(iii)  Judgment for the plaintiff in the District Court in an amount of $341,168, such judgment to take effect from 17 December 2004;
(iv)  The respondent to pay pre-judgment interest on half the amount of $100,000, at two percent per annum for seven and a half years, being an amount of $7,500;
(v)  The respondent to pay the appellant’s costs of and incidental to the appeal and the trial, as agreed or assessed;
(vi)  The respondent to be granted an indemnity certificate pursuant to the terms of section 6 of the Suitors’ Fund Act 1951 if otherwise entitled.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40025/05
DC 05898/99

TOBIAS JA
BASTEN JA
ROTHMAN J

15 December 2006

Anastasios KAPPADOUKAS v FRANSEPP PTY LTD

Judgment

1. TOBIAS JA:  I agree with Rothman J.

2. BASTEN JA:  As Rothman J explains, the plaintiff’s injuries were undoubted as was the fact that they were caused by a significant fall.  The question of liability, so far as relevant to the appeal, turned on the question whether the plaintiff fell off the top of the ladder or whether he had reached the first floor of the premises and fell through a hole in the floor.  He gave evidence that he had stepped from the ladder to the first floor, taken two paces and found himself back on the ground floor.  He landed on his right leg, and fell on to his right shoulder, causing the injuries to those parts of his body.

3. The plaintiff’s account of the accident was supported by the only other person with him at the time, Mr Paul Curtis, who said…