MITCHELL v FISHER and ORS [1998] NSWCA 146

MITCHELL v FISHER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and STEIN JJA 1 July 1998, 8 September 1998

[1998] NSWCA 146

NEGLIGENCE — whether trial judge faded to consider inference of novas actus — lack of evidence to justify such an inference — whether inference arose from failure of party to testify — no onus to give evidence in the negative

DAMAGES — award for general damages and future economic loss manifestly inadequate — award for future medical expenses ought not be incorporated within general damages

This appeal and cross-appeal arises from a claim for damages for injuries received by the first respondent during a fall from an external first floor landing on 25 September 1987. The claim was initially brought against the owner of the building (the second respondent). The claim was later amended to include the builder of the landing (the appellant) and the tenant of the adjacent unit (the third respondent) was added as a third party. A multiplicity of pleadings and cross-pleadings ensued.

Central to the dispute was the condition of the top railing on the landing. All parties to the proceedings called expert evidence, however, none had examined the site until several years after the fall occurred. The trial judge held that there was insufficient evidence on which to conclude that the railing had been damaged by some novus actus or that the owner or tenant knew, or should have known, that the railing was dangerous. He concluded that the railing was loose because it had not been properly attached when the staircase was constructed and that the builder was solely liable.

Issues raised by the appeal and cross-appeal included:

1. whether the trial judge failed to apply available inferences when considering the possibility of a novus actus;

2. whether the judge failed to apply available inferences when considering the failure of the third respondent to testify;