KAPPADOUKAS v FRANSEPP PTY LTD [2006] NSWCA 366

New South Wales Court of Appeal

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

HEARING DATE(S): 27 April 2006

JUDGMENT DATE: 15 December 2006

JUDGMENT OF: Tobias JA at 1; Basten JA at 2; Rothman J at 34

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.

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

Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 Fox v Percy (2003) 214 CLR 118 CASES CITED: Graham v Baker (1961) 106 CLR 340 Griffiths v Kerkemeyer (1977) 139 CLR 161 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492