BENJAMIN SCOTT (ALSO KNOWN AS BENJAMIN SKORJENKO) v CORAL GWENDOLYN STANSBU RY [1990] NSWCA 162

BENJAMIN SCOTT (ALSO KNOWN AS BENJAMIN SKORJENKO) v CORAL GWENDOLYN STANSBU RY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, PRIESTLEY and HANDLEY JJA 13 June 1990, 13 June 1990

[1990] NSWCA 162

NEGLIGENCE — no contributory negligence when prospective purchaser inspecting house for sale falls down steep steps after warning because this very danger which established defendant's liability — no question of principle. COSTS — Bullock order — circumstances in which will be made — Gould and anor v Vaggelas and Ors (1985) 156 CLR 215 at 229-30.

Samuels JA On 15 March 1986 the appellant (who I think I can call the owner') was the owner of domestic premises at Stockton. On that day the first respondent (whom I will call "the plaintiff') called as a prospective purchaser. She was attended by members of her family, whom it is not necessary to notice further, and also in attendance was a Miss Killy, who was then employed by real estate agents acting for the owner, and the tenant of the premises, a Miss Gilson.

The matter (following an accident to the plaintiff which I will retail in a little more detail presently) came before Judge Herron, who gave judgment for the plaintiff against the owner and judgment for the agent and the tenant, both of whom were sued, against the plaintiff and made certain orders for costs, to which it will be necessary to refer also.

The owner has appealed, not against the finding of negligence against him but against the learned Judge's refusal to find contributory negligence against the plaintiff and to diminish his assessment of damages on that account. In addition, the owner complains that the learned judge fell into error in exercising his discretion on costs when he made a Bullock order in favour of the plaintiff, which required the first defendant, the owner, to indemnify the plaintiff against the costs in favour of the third defendant, the agent, which followed the result which I have indicated.