Harrison v Melhem

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.