This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Appeal
New South Wales
Case Title: Berkeley Challenge Pty Ltd v Howarth Medium Neutral Citation: [2013] NSWCA 370 Hearing Date(s): 19 August 2013 Decision Date: 08 November 2013 Before: Basten JA at [1];
Meagher JA at [25];
Tobias AJA at [26].Decision: 1. Appeal allowed in part.
2. Set aside the judgment of Sidis DCJ of 23 March 2012 in favour of the respondent, as varied by her Honour's Order of 30 March 2012, in the sum of $1,000,762.91.
3. Direct the parties to calculate and lodge with the Court within 7 days the damages to be awarded to the respondent. Those damages are to be calculated in accordance with the reasons of Tobias AJA except that the allowance to be made for vicissitudes in relation to future economic loss is to be 25%. Those damages should also take into account the effect of s 151Z(2) of the Workers Compensation Act 1987. The Court will then enter judgment in favour of the respondent in that amount in lieu of the judgment referred to in Order 2 above.
4. Direct that the judgment referred to in Order 3 above take effect from the date of judgment in the Court below, being 30 March 2012.
5. Direct the parties within 7 days of the publication of these reasons to file and serve any submissions they wish to make with respect to the 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: TORTS - damages - whether award of damages for non-economic loss excessive - whether award of damages for past and future economic loss excessive - whether plaintiff entitled to damages for future domestic care - apportionment under Workers Compensation Act 1987, s 151Z Legislation Cited: Civil Liability Act 2002, ss 11A, 13 16; Pt 2
Motor Accidents Act 1988, s 79
Motor Accidents Compensation Act 1999, s 126
Supreme Court Act 1970, ss 75A, 106, 107
Uniform Civil Procedure Rules 2005, r 51.53
Workers Compensation Act 1987, ss 151H, 151Z
Workplace Injury Management and Workers Compensation Act 1998, s 322Cases Cited: Coghlan v Cumberland [1898] 1 Ch 704
Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264
Dell v Dalton (1991) 23 NSWLR 528
Flint v Lovell [1935] 1 KB 354
Fox v Percy [2003] HCA 22; 214 CLR 1118
Guides Australia Inc v McMartin [2006] NSWCA 20; (2006) Aust Torts Reports 81-828
Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132
Kallouf v Middis [2008] NSWCA 61
Mason v Demasi…
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- AGLC
- Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370
- Case
- [2013] NSWCA 370
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the award of damages for non-economic loss was excessive, whether the awards for past and future economic loss were excessive, and whether Mr Howarth was entitled to damages for future domestic care. The Court was also required to consider the apportionment of damages under section 151Z of the *Workers Compensation Act 1987*.
The Court of Appeal, in allowing the appeal in part, varied the original judgment. The reasoning of Tobias AJA formed the basis for the revised assessment of damages. Key to the variation was the application of a 25% allowance for vicissitudes in relation to future economic loss and the consideration of the impact of section 151Z(2) of the *Workers Compensation Act 1987*.
Consequently, the Court set aside the original judgment of $1,000,762.91 and directed the parties to calculate and lodge the revised damages within seven days, to be entered as judgment in favour of the respondent, effective from the date of the original judgment. Directions were also given regarding submissions on the costs of the appeal.
Orders
Orders of the court
1. Appeal allowed in part.
2. Set aside the judgment of Sidis DCJ of 23 March 2012 in favour of the respondent, as varied by her Honour's Order of 30 March 2012, in the sum of $1,000,762.91.
3. Direct the parties to calculate and lodge with the Court within 7 days the damages to be awarded to the respondent. Those damages are to be calculated in accordance with the reasons of Tobias AJA except that the allowance to be made for vicissitudes in relation to future economic loss is to be 25%. Those damages should also take into account the effect of s 151Z(2) of the Workers Compensation Act 1987. The Court will then enter judgment in favour of the respondent in that amount in lieu of the judgment referred to in Order 2 above.
4. Direct that the judgment referred to in Order 3 above take effect from the date of judgment in the Court below, being 30 March 2012.
5. Direct the parties within 7 days of the publication of these reasons to file and serve any submissions they wish to make with respect to the 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.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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