BERTRAM & SON PTY LTD v FOSTER; GRACE v FOSTER; FULLER FLANDERS PTY LTD v FOSTER [1995] NSWCA 45

BERTRAM & SON PTY LTD v FOSTER; GRACE v FOSTER; FULLER FLANDERS PTY LTD v FOSTER

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBy P, MEAGHER JA and COLE JA 26 September 1995 [1995] NSWCA 45

DAMAGES — personal injury — plaintiff falls in premises — liability ultimately conceded — trial judge (Finlay J) awards damages of $573,723 — On appeal by defendants — held: (Meagher JA; Kirby P and Cole JA concurring) (1) The components for general damages for past economic loss, future economic loss and future domestic assistance were erroneous and should be recalculated; (2) In accordance with the invitation of the parties, the Court should proceed to recalculate damages and could safely do so; (3) In the circumstances, damages should be calculated in the sum of $445,775 and a substitute judgment should be entered in that sum — no matter of principle.

Kirby P. In this matter the Court will proceed now to judgment. I will ask Meagher JA to give the first judgment.

Meagher JA. In this matter the plaintiff on 3 April 1985 went, pursuant to an advertisement, to inspect certain premises at Womerah Avenue, Darlinghurst. She was told by an estate agent that the premises had been fully renovated and that if the agent did not meet her there she was to introduce herself to the builder. She went there, found no agent and the builder invited her in. When in there she fell down a hole and thereby did very serious injury to her left ankle. She sued the owner, the agent and the builder. Finlay J found they were all liable; he entered a verdict in the plaintiff's favour for $573,723. He entered judgment accordingly. Each of the defendants has appealed. Their appeals on liability have been settled, leaving us to deal with the question of damages.

Several points ought to be made. The first of them is that the plaintiff's credit was left unimpeached. The trial judge believed her explicitly. We must do likewise.