Craig William JACKSON v LITHGOW CITY COUNCIL [2008] NSWCA 312
HEARING DATE(S):
15 August 2008
JUDGMENT DATE:
24 November 2008
JUDGMENT OF:
Allsop P at 1; Basten JA at 109; Grove J at 110
DECISION:
1. Appeal allowed. 2. Orders made by the District Court on 13 June 2007 be set aside and in lieu thereof it be ordered: (a) there be verdict and judgment for the plaintiff in the sum of $203,475 to take effect as at 13 June 2007; (b) interest thereon be payable and calculated by reference to the Civil Procedure Act 2005, s 101; and (c) the defendant pay the plaintiff's costs. 3. The respondent pay the appellant's costs of the appeal.
CATCHWORDS:
NEGLIGENCE – causation – evidence - EVIDENCE – evidence in negligence action – inference of fact from occurrence of damage and all the surrounding circumstances – note of ambulance officers –opinion evidence under Evidence Act 1995 (NSW), s 78 - MEASURE OF DAMAGES (TORT) – damages for personal injuries – assessment – quantum recoverable – future economic loss – non-economic loss – loss of earnings and earning capacity – future care – past care - INTOXICATION – relationship between Civil Liability Act 2002 (NSW), s 50(2) and (3) – contributory negligence.
Dr A Morrison SC, D Elliott S G Campbell SC, S E McCarthy
SOLICITORS:
Gerard Malouf & Partners, North Parramatta DLA Phillips Fox
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 1111/2005
LOWER COURTJUDICIAL OFFICER:
Ainslie-Wallace DCJ
LOWER COURT DATE OF DECISION:
13 June 2007
40614/07
ALLSOP P BASTEN JA GROVE J
24…
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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AGLC
Jackson v Lithgow City Council [2008] NSWCA 312
Case
[2008] NSWCA 312
Decision Date
CaseChat Overview and Summary
The appeal concerned a negligence claim brought by the plaintiff, Jackson, against the defendant, Lithgow City Council. The dispute centred on whether the Council's negligence caused the plaintiff's injuries, and if so, the appropriate assessment of damages. The matter was heard by the Court of Appeal of New South Wales.
The Court of Appeal was required to determine several key legal issues. These included the question of causation in a negligence action, particularly in relation to the inference of fact that could be drawn from the occurrence of damage and surrounding circumstances. The admissibility and weight of opinion evidence, specifically a note made by ambulance officers, under section 78 of the *Evidence Act 1995* (NSW) were also in contention. Furthermore, the court had to assess the quantum of damages recoverable for personal injuries, encompassing future economic loss, non-economic loss, loss of earnings and earning capacity, and future and past care. The interplay between sections 50(2) and (3) of the *Civil Liability Act 2002* (NSW) concerning intoxication and its relationship to contributory negligence was also a significant issue.
The Court of Appeal allowed the appeal, setting aside the orders of the District Court. The court found in favour of the plaintiff, awarding a verdict and judgment in the sum of $203,475, with interest to be calculated in accordance with section 101 of the *Civil Procedure Act 2005*. The defendant was ordered to pay the plaintiff's costs in the District Court, and the respondent was ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
1. Appeal allowed. 2. Orders made by the District Court on 13 June 2007 be set aside and in lieu thereof it be ordered: (a) there be verdict and judgment for the plaintiff in the sum of $203,475 to take effect as at 13 June 2007; (b) interest thereon be payable and calculated by reference to the Civil Procedure Act 2005, s 101; and (c) the defendant pay the plaintiff's costs. 3. The respondent pay the appellant's costs of the appeal.