Coles Supermarkets Australia Pty Ltd v Fardous [2015] NSWCA 82

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Coles Supermarkets Australia Pty Ltd v Fardous [2015] NSWCA 82 Hearing dates: 5 March 2015 Decision date: 08 April 2015 Before: Macfarlan JA at [1]; Emmett JA at [41]; Simpson J at [46] Decision: (1) Appeal allowed. (2) Set aside the judgment of $354,965 entered pursuant to orders made in the District Court on 30 July 2014. (3) Direct that the parties lodge with the Court within 14 days of the date of this judgment a form of consent order varying, in accordance with the Court's reasons for judgment, the amount of the judgment entered in Mr Fardous' favour in the District Court or, if the parties are unable to agree on the form of that order, that they lodge proposed orders and submissions in accordance with the following timetable: (a) The appellant within 14 days (b) The respondent within a further 14 days (c) Any reply within a further 7 days. (4) Order the appellant to pay 65% of the respondent's costs of the appeal. Catchwords: TORT – negligence – occupier's liability – liability not in dispute – damages – pre-existing disability – whether respondent had any earning capacity at the date of injury – practical assessment required of the possibility or probability of any such capacity being productive of income but for the accident Legislation Cited: Civil Liability Act 2002 (NSW), s 13 Cases Cited: JK Kealley v Jones [1979] NSWLR 723 Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Mead v Kerney [2012] NSWCA 215 Morvatjou v Moradkhani [2013] NSWCA 157 National Instruments Pty Ltd v Gilles (1975) 49 ALJR 349 Nominal Defendant v Livaja [2011] NSWCA 121 Purkess v Crittenden [1965] HCA 34; 114 CLR 164 State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 Category: Principal judgment Parties: Coles Supermarkets Australia Pty Ltd (Appellant) Abrahim Fardous (Respondent) Representation: Counsel: G J Parker SC (Appellant) P Menzies QC/W Ward (Respondent)