Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Clifton & Ors v Lewis [2012] NSWCA 229 Hearing dates: 21 June 2012 Decision date: 30 July 2012 Before: Beazley JA at [1];
Basten JA at [55]Decision: Appeal dismissed with costs.
[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 - Personal injury - Non-economic loss - Trial judge assessed non-economic loss at 33 per cent of a most extreme case - Whether trial judge erred in assessment - Award of non-economic loss is an evaluative judgment - Trial judge did not take into account irrelevant considerations or wrongly assess medical evidence - No error in exercise of trial judge's discretion - Appeal dismissed.
DAMAGES - Torts - Negligence - Personal injury - Future economic loss - Onus on plaintiff to prove impact of injury on future earning capacity - Whether trial judge erred in assessment of future economic loss when plaintiff did not plead or particularise claim for loss based on advancement to operations supervisor - Case expanded at trial beyond that particularised - Trial judge was entitled on the evidence to assess plaintiff as person who would have advanced to Operations Manager position.
DAMAGES - Torts - Negligence - Personal injury - Future economic loss - Assessment of damages for future economic loss by way of buffer - Whether trial judge erred in assessment of buffer - Whether medical evidence must expressly state that earning capacity impaired - Evidence required to support finding that earning capacity impaired - Such finding to be made on all of the relevant evidence - No necessity for medical evidence to expressly state earning capacity impaired - Medical evidence consistent with plaintiff's evidence of extent of work incapacity - Trial judge did not err in assessment of buffer - Civil Liability Act 2002, s 13.Legislation Cited: Civil Liability Act 2002 Cases Cited: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120
Dell v Dalton (1991) 23 NSWLR 528
Fegan (by her tutor Rozenauers) v Lane Cove House Pty Limited [2007] NSWCA 88
Graham v Baker [1961] HCA 48; 106 CLR 340
Jackson v Mazzafero [2012] NSWCA 170
Khan v Polyzois [2006] NSWCA 59
K-Mart Australia Ltd v McCann [2004] NSWCA 283
McCracken v Melbourne Storm Rugby League Football Club Limited & 2 Ors [2007] NSWCA 353
Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1
Penrith City Council v Parks [2004] NSWCA 2001
State of New South Wales v Zerafa [2005] NSWCA 187
State of NSW v Moss [2000] NSWCA 133; 54 NSWLR 536
Zorom Enterprises…
Continue reading Clifton v Lewis
Sign in free to access the full text
- AGLC
- Clifton v Lewis [2012] NSWCA 229
- Case
- [2012] NSWCA 229
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the trial judge erred in assessing the plaintiff's non-economic loss at 33 per cent of a most extreme case, and whether the trial judge erred in assessing future economic loss. Specifically, regarding future economic loss, the court considered whether the trial judge was entitled to assess the plaintiff's potential advancement to an Operations Manager position, even though this was not specifically pleaded or particularised, and whether the trial judge erred in assessing a buffer for future economic loss without explicit medical evidence stating the plaintiff's earning capacity was impaired.
The Court of Appeal held that the trial judge's assessment of non-economic loss was an evaluative judgment that did not involve taking into account irrelevant considerations or wrongly assessing medical evidence, and therefore no error was found in the exercise of discretion. Regarding future economic loss, the court found that the trial judge was entitled to assess the plaintiff as a person who would have advanced to an Operations Manager position, as the case had expanded at trial beyond the initial particulars and the evidence supported this assessment. Furthermore, the court confirmed that medical evidence does not need to expressly state that earning capacity is impaired; rather, such a finding can be made on all the relevant evidence, provided it is consistent with the plaintiff's evidence of work incapacity. The trial judge's assessment of a buffer for future economic loss was therefore not erroneous.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
[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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.