Appleton v Norris

[2014] NSWCA 311

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Appleton v Norris [2014] NSWCA 311

Hearing dates:

13 August 2014

Decision date:

09 September 2014

Before:

McColl JA at [1]
Meagher JA at [2]
Adamson J at [3]

Decision:

(1) Vary the judgment of the Court below by substituting for the figure of $191,943.55, the figure of $195,060.43.

(2) Otherwise dismiss the appeal.

(3) Order the appellant pay the respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

DAMAGES - torts - negligence - reconstructive surgery - assessment of damage reflected trial judge's findings on credibility - ought not be disturbed - sufficient reasons

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 15, 16
Supreme Court Act 1970 (NSW), 75A

Cases Cited:

Clifton v Lewis [2012] NSWCA 229
Commonwealth Financial Planning Ltd v Couper [2013] NSWCA 444
Dell v Dalton (1991) 23 NSWLR 528
Hill v Forrester [2010] NSWCA 170; 79 NSWLR 470
Fox v Percy [2003] HCA 22; 214 CLR 118
Watts v Rake [1960] HCA 58; 108 CLR 158

Category:

Principal judgment

Parties:

Cara Appleton (Appellant)
Dr Benjamin Norris (trading as Form and Facade) (Respondent)

Representation:

Counsel:
G J Hatcher SC/V Tzatzagos (Appellant)
J Downing (Respondent)
Solicitors:
Brydens Law Office (Appellant)
Dibbs Barker (Respondent)

File Number(s):

CA 2013/258267

Publication restriction:

Nil

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-08-13 00:00:00

Before:

Balla DCJ

File Number(s):

DC 2012/193301

Judgment

1. McCOLL JA: I agree with Adamson J's reasons and the orders her Honour proposes.

1. MEAGHER JA: I agree with Adamson J.

1. ADAMSON J: The appellant appeals against the judgment of Balla DCJ delivered on 13 August 2013 in which her Honour assessed damages, liability having been admitted by the respondent. The appellant had undergone unsuccessful reconstructive surgery to her breasts for which the respondent was responsible. The surgery and subsequent operations resulted in a serious infection and disfigurement and asymmetry of her breasts. She claimed non-economic loss, loss of past and future earning capacity, past domestic care and past and future out-of-pocket expenses.

1. Her Honour assessed damages as follows:

Head of damages claimed	Amount awarded
Non-economic loss	$123,000 (30% of worst case)
Past treatment expenses	$636.10
Future treatment expenses	$37,000
Past domestic assistance	NIL
Future domestic assistance	$2,560
Past economic loss	$22,295
Past superannuation	$2,452.45
Future economic loss	$4,000
TOTAL	$191,943.55

1. The six grounds of appeal set out in the notice of appeal challenge these awards on the following bases:

"1. Her Honour's assessment of the Appellant's relationship to a most extreme case under s. 16 of the Civil Liability Act, 2002 was manifestly inadequate.

2.…