Arnott v Choy

McColl and Basten JJA of the Court of Appeal of New South Wales heard an appeal concerning damages awarded to the respondent following a motor vehicle accident. The respondent, who was 19 at the time of the accident and 23 at trial, suffered cognitive, emotional, and behavioural effects from a head injury, including damage to his frontal lobes. The primary judge awarded substantial damages, including for past and future economic loss, and attendant care. The appellant contended that the primary judge erred in several aspects of the damages assessment, particularly regarding the respondent's residual earning capacity and the quantum of attendant care.

The central legal issues before the Court of Appeal included whether the primary judge's finding that the respondent had no residual earning capacity was sustainable, given the medical and lay evidence. The court was also required to determine if the damages awarded for attendant care were excessive, particularly where evidence suggested some capacity for independent living and potential overlap with damages awarded under other heads. Furthermore, the court considered whether the respondent had taken "reasonable steps" to mitigate his loss by pursuing alternative employment opportunities, as required by section 136 of the *Motor Accidents Compensation Act 1999* (NSW), given his failure to seek employment for two years prior to the hearing.

The Court of Appeal allowed the appeal in part. While acknowledging the respondent's significant cognitive and behavioural impairments stemming from the head injury, which the primary judge had accepted as permanent and impacting his ability to work, the court found that the primary judge's conclusion that the respondent was, and would remain, unemployable was not sustainable. The appellant argued, and the court accepted, that the evidence, including the respondent's own testimony and medical reports, indicated a residual earning capacity, albeit diminished. The court also found that the award for attendant care was excessive, noting the respondent's capacity for independent living and the potential for duplication of services. Consequently, the court set aside the primary judge's verdict and judgment.

The Court of Appeal directed the parties to recalculate the revised heads of damage in accordance with the court's reasons and to file short minutes of order for a substituted judgment within seven days. The court also ordered the parties to file written submissions concerning costs in both the Court of Appeal and at trial.