(1) Allow the appeal and set aside orders 1-3 made by the District Court on 26 September 2008 and the costs order made on 21 November 2008.
(2) In lieu thereof:
(a) direct that judgment be entered for the plaintiff in an amount notified by the parties to the Registrar, calculated in accordance with this judgment; (b) the judgment so entered take effect from 26 September 2008; (c) order the defendant to pay the plaintiff’s costs in the District Court.
(3) Order the respondent to pay the appellant’s costs in this Court.
(4) Grant the respondent a certificate pursuant to the Suitors’ Fund Act 1951 (NSW) in respect of the costs of the appeal.
CATCHWORDS:
DAMAGES – future economic loss – challenge to adequacy of damages – assessment flowing from motor vehicle accident – psychological injuries sustained – psychological treatment prescribed – whether treatment likely to be undertaken – likely effect of treatment upon future earning capacity – Motor Accidents Compensation Act 1999 (NSW), s 126 - WORDS AND PHRASES – "future economic loss"
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Amoud v Al Batat [2009] NSWCA 333
Case
[2009] NSWCA 333
Decision Date
CaseChat Overview and Summary
The appeal concerned an assessment of damages for future economic loss arising from a motor vehicle accident. The appellant, Amoud, had sustained psychological injuries and received a prescribed course of psychological treatment. The respondent, Al Batat, challenged the adequacy of the damages awarded by the District Court, specifically questioning whether the prescribed treatment was likely to be undertaken and, if so, its likely effect on the appellant's future earning capacity. The matter was heard in the Court of Appeal of New South Wales.
The central legal issue before the Court of Appeal was whether the District Court had erred in its assessment of future economic loss, particularly in relation to the impact of the appellant's psychological injuries and the prescribed treatment on her future earning capacity. This involved determining the likelihood of the appellant undertaking the recommended treatment and the extent to which such treatment would mitigate her loss of earning capacity. The court was required to consider the provisions of section 126 of the *Motor Accidents Compensation Act 1999* (NSW) in its assessment.
The Court of Appeal found that the District Court had made an error in its assessment of future economic loss. The court reasoned that the District Court had not adequately considered the likelihood of the appellant undertaking the recommended psychological treatment and its potential impact on her future earning capacity. The court applied principles relating to the assessment of damages for future economic loss, emphasizing the need for a realistic appraisal of the claimant's future circumstances, including the potential benefits of medical treatment.
The appeal was allowed, and the orders of the District Court were set aside. The Court of Appeal directed that judgment be entered for the plaintiff in an amount to be notified by the parties, to take effect from the date of the original District Court judgment. The defendant was ordered to pay the plaintiff's costs in the District Court, and the respondent was ordered to pay the appellant's costs in the Court of Appeal, with a certificate granted under the *Suitors’ Fund Act 1951* (NSW) for the costs of the appeal.
Orders
Orders of the court
(1) Allow the appeal and set aside orders 1-3 made by the District Court on 26 September 2008 and the costs order made on 21 November 2008.
(2) In lieu thereof:
(a) direct that judgment be entered for the plaintiff in an amount notified by the parties to the Registrar, calculated in accordance with this judgment;
(b) the judgment so entered take effect from 26 September 2008;
(c) order the defendant to pay the plaintiff’s costs in the District Court.
(3) Order the respondent to pay the appellant’s costs in this Court.
(4) Grant the respondent a certificate pursuant to the Suitors’ Fund Act 1951 (NSW) in respect of the costs of the appeal.