MITCHELL v FISHER and ORS [1998] NSWCA 146

MITCHELL v FISHER and ORS [1998] NSWCA 146

There was no evidence to justify an inference that the railing was damaged by a novus actus. There was no onus on the tenant to give evidence in the absence of any such evidence. The trial judge's findings as to liability were correct. However, the awards for general damages and future economic loss were manifestly inadequate, and future medical expenses should not have been included in general damages but addressed as a separate head of damage.

Parties
Appellant: Mitchell; First Respondent/cross Appellant: Fisher (Christine Fisher); Second Respondent: Owner of the building (second respondent); Third Respondent: Tenant of the adjacent unit (third respondent)
Jurisdiction
Australia
Judgment Date
08 September 1998
Procedural Posture
Appeal and Cross Appeal / Judgment on Appeal From District Court
Outcome
Appeal dismissed with costs; cross-appeal allowed; verdict for plaintiff set aside and substituted with an increased award, subject to determination of interest; orders made as proposed.
Legal Topics
Negligence, Damages, Standard of Care, Quantum of Damages
Tort Law Personal Injury Negligence Damages Standard of Care Quantum of Damages

Case Brief

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Parties

Mitchell

Appellant

Fisher (Christine Fisher)

First Respondent/cross Appellant

Owner of the building (second respondent)

Second Respondent

Tenant of the adjacent unit (third respondent)

Third Respondent

Procedural Posture

Appeal and Cross Appeal / Judgment on Appeal From District Court

Legal Issues

  1. 1 Whether the trial judge failed to apply available inferences regarding novus actus interveniens
  2. 2 Whether the trial judge failed to apply inferences from the tenant's failure to testify
  3. 3 Whether the award for general damages and future economic loss was manifestly inadequate

Ratio Decidendi

There was no evidence to justify an inference that the railing was damaged by a novus actus. There was no onus on the tenant to give evidence in the absence of any such evidence. The trial judge's findings as to liability were correct. However, the awards for general damages and future economic loss were manifestly inadequate, and future medical expenses should not have been included in general damages but addressed as a separate head of damage.

Court Disposition

Appeal dismissed with costs; cross-appeal allowed; verdict for plaintiff set aside and substituted with an increased award, subject to determination of interest; orders made as proposed.

Orders

  • Appeal dismissed with costs.
  • Cross-appeal allowed.