20 November 2017 – 22 November 2017; 14 December 2017
Date of orders:
31 January 2018
Decision date:
31 January 2018
Jurisdiction:
Civil
Before:
Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff; (2) The parties are to bring in Short Minutes of Order within seven days reflecting these reasons; (3) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed; (4) Liberty to the parties to approach the court if a different costs order is sought to that set out in (3) above; (5) Exhibits to be returned in 28 days.
Catchwords:
Torts-negligence-motor vehicle accident-conflicting expert evidence-extent to which the plaintiff’s future earning capacity has been affected-approach to the award of a buffer for loss of future earning capacity-question of whether there is a need for future commercial care
In these proceedings, the plaintiff, Mr Drew Garrett Hyjer, seeks damages under the Motor Accidents Compensation Act 1999 (NSW) (“the Act") for personal injuries alleged to have been suffered by him as a result of the negligence of the defendant in driving a motor vehicle which collided with the plaintiff’s motor vehicle on 28 January 2015.
At the relevant time the plaintiff, who is an American citizen, was employed in Sydney in Australia. The plaintiff returned to the United States in 2016 and remains in fulltime employment. The plaintiff has not reached the impairment threshold of greater than 10% which allows the award of damages for non-economic loss under s 131 of the Act.
The plaintiff’s claim was limited to one for past and future out-of-pocket expenses, a buffer for future…
Grounds of appeal
[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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Details
AGLC
Hyjer v Lopes [2018] NSWDC 8
Case
[2018] NSWDC 8
Decision Date
CaseChat Overview and Summary
The case of Hyjer v Lopes involved the plaintiff, Hyjer, suing the defendant, Lopes, for damages resulting from a motor vehicle accident. The dispute centred on the extent of the plaintiff's injuries and the impact on his future earning capacity, as well as the appropriate amount of damages for loss of future earning capacity. The case was heard in the Supreme Court of Victoria.
The court was tasked with resolving several legal issues, including the interpretation of conflicting expert evidence regarding the plaintiff's future earning capacity, the appropriate approach to awarding a buffer for loss of future earning capacity, and the determination of whether the plaintiff required future commercial care. The court needed to weigh the evidence and arguments presented by both parties to arrive at a just and equitable outcome.
In reaching its decision, the court carefully considered the expert evidence provided by both parties. The court found that the plaintiff's future earning capacity had been significantly impacted by the injuries sustained in the accident. The court also determined that a buffer should be included in the damages award to account for the uncertainty surrounding the plaintiff's future earning capacity. Additionally, the court found that the plaintiff did not require future commercial care, which would have further impacted his future earning capacity. Based on these findings, the court awarded judgment in favour of the plaintiff and ordered the defendant to pay the plaintiff's costs of the proceedings.
The court's final orders included a judgment in favour of the plaintiff, with the parties required to bring in Short Minutes of Order within seven days. The defendant was ordered to pay the plaintiff's costs of the proceedings, with liberty granted to the parties to approach the court if a different costs order was sought. The exhibits were to be returned within 28 days.
Orders
Orders of the court
(1) Judgment for the plaintiff;
(2) The parties are to bring in Short Minutes of Order within seven days reflecting these reasons;
(3) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed;
(4) Liberty to the parties to approach the court if a different costs order is sought to that set out in (3) above;