Special leave application refused with costs by the High Court – 14 November 2008
New South Wales
Court of Appeal
CITATION:
Harrison v Melhem [2008] NSWCA 67 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
6 December 2007
JUDGMENT DATE:
29 May 2008
JUDGMENT OF:
Spigelman CJ at 1; Mason P at 21; Beazley JA at 191; Giles JA at 192; Basten JA at 193
DECISION:
1 Appeal upheld in part 2 Vary the judgment entered in the Common Law Division by substituting $676 248.85 for $637.409.62 3 Cross appeal dismissed 4 Respondents to pay appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 if qualified.
CATCHWORDS:
APPEAL AND NEW TRIAL – Appeal – general principles – excessive or inadequate damages – damages excessive – amount not so large as to be entirely erroneous – errors in principle in relation to particular components - DAMAGES – Measure and remoteness of damages in actions for tort – measure of damages – personal injuries – loss of earnings and earning capacity – expense flowing from plaintiff’s inability to work – particular cases – where loss of earning capacity attributed to injury and also to drug use – whether attributing for drug use an error - DAMAGES – Measure and remoteness of damages in actions for tort – measure of damages – personal injuries – method of assessment – generally – claim for domestic assistance – where assistance required for less than 6 hours per week but for more than 6 months – Civil Liability Act 2002, s15(3) - STATUTES – Acts of Parliament – interpretation – rules of construction – words to be given literal and grammatical meaning – Civil Liability Act 2002, s15(3) - STATUTES – Acts of Parliament – interpretation – rules of construction – where meaning ambiguous or uncertain – presumptions as to legislative intention - STATUTES – Acts of Parliament – interpretation – consideration of extrinsic material – legislative history of the Act – previous state of law and mischief to be remedied – Civil Liability Act 2002, s15(3)
[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
Harrison v Melhem [2008] NSWCA 67
Case
[2008] NSWCA 67
Decision Date
CaseChat Overview and Summary
In *Harrison v Melhem*, the Court of Appeal of New South Wales considered an appeal and cross-appeal concerning damages awarded in a personal injury claim. The appellant, Harrison, sought to challenge the quantum of damages awarded, while the respondent, Melhem, cross-appealed against certain aspects of the judgment.
The primary legal issues before the Court of Appeal were whether the trial judge had erred in principle in assessing the appellant's loss of earning capacity, specifically in relation to the attribution of that loss to drug use rather than the injury itself, and whether the trial judge had correctly interpreted and applied section 15(3) of the *Civil Liability Act 2002* (NSW) in assessing the claim for domestic assistance.
The Court of Appeal reasoned that the trial judge had made an error in principle by failing to adequately distinguish between the loss of earning capacity attributable to the injury and that which might have been caused by the appellant's drug use. The Court applied the principle that damages for loss of earning capacity should reflect the impact of the wrongdoer's actions, not pre-existing conditions or subsequent independent factors. Regarding section 15(3) of the *Civil Liability Act 2002*, the Court undertook a literal and grammatical interpretation of the provision, considering its legislative history and the mischief it was intended to remedy. The Court found that the trial judge's assessment of domestic assistance was affected by an error in applying this section.
Consequently, the Court of Appeal upheld the appeal in part, varying the judgment entered in the Common Law Division by substituting an increased amount for the original award. The cross-appeal was dismissed, and the respondents were ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
1 Appeal upheld in part
2 Vary the judgment entered in the Common Law Division by substituting $676 248.85 for $637.409.62
3 Cross appeal dismissed
4 Respondents to pay appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 if qualified.
17/10/2008 - incorrect figures - Paragraph(s) Coversheet Order 2, Headnote Order 2, [44], [190] Order 2
28/04/2009 - par [2] reference [118] should be [88], par [117] paragraph [95] should be par [115] par [128] paragraph [91] shoudlb e par [111] - Paragraph(s) [2], [117], [128]