Dailhou v Kelly; State of NSW v Kelly (No 2) [2014] NSWSC 1207

Supreme Court New South Wales

Medium Neutral Citation: Dailhou v Kelly; State of NSW v Kelly (No 2) [2014] NSWSC 1207 Hearing dates: 25, 26, 27 and 28 August 2014 Decision date: 02 September 2014 Jurisdiction: Common Law Before: Adamson J Decision: Proceedings 158994 of 2010 (1)Judgment for the defendants. (2)Unless a written application for a different order is made within seven days to my Associate, order the plaintiff to pay the defendants' costs of the proceedings. Proceedings 233293 of 2011 (1)Judgment for the defendants. (2)Unless a written application for a different order is made within seven days to my Associate, order the plaintiff to pay the defendants' costs of the proceedings. Catchwords: TORTS - negligence - plaintiff failed to prove case - not established how or why he fell down a flight of stairs in bookshop - no negligent act or omission attributable to the defendants - plaintiff not credible witness

DAMAGES - economic loss relatively modest - plaintiff able to travel overseas not long after fall - no real prospects of becoming a school principal

WORKERS' COMPENSATION - workers compensation insurer obliged to establish that compensation paid was referable to the putative tortious incident - not sufficient that it allocated the expense to an earlier claim where there was a subsequent work-related injury to same part of body not causally related to subject incident - effect of Determination of Workers Compensation Commission Legislation Cited: Civil Liability Act 2002 (NSW), s 15 Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10 Workers Compensation Act 1987 (NSW), ss 9A, 60, 151Z Workplace Injury Management And Workers Compensation Act 1998 (NSW), s 74 Cases Cited: Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; 160 CLR 301 Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 Glad Cleaning Service Pty Limited v Vukelic [2010] NSWSC 422 James D Ritchie Pty Limited v Imrahan Kathirgamalingam (District Court, Williams DCJ, 21 April 2011, unrep) Jones v Dunkel ((1959) 101 CLR 298 Kurnell Passenger & Transport Service Pty Limited v Randwick City Council [2009] NSWCA 59 Kwanchi Pty Limited v Kocsis (1996) 40 NSWLR 270 Workers Compensation Nominal Insurer v Nominal Defendant [2013] NSWCA 301 Category: Principal judgment Parties: Proceedings 2010/158994 Peter Michael Dailhou (Plaintiff) Maurice Kelly (First Defendant) Topmill Pty Limited (Second Defendant)