Jopling v Isaac

[2006] NSWCA 306

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Jopling v Isaac [2006]  NSWCA 306

FILE NUMBER(S):
40066/06

HEARING DATE(S):               13/10/06

DECISION DATE:     07/11/2006

PARTIES:
Margaret Jopling (Appellant)
Clinton Isaac (Respondent)

JUDGMENT OF:       McColl JA Basten JA McDougall J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 2971/04

LOWER COURT JUDICIAL OFFICER:     McLoughlin SC DCJ

COUNSEL:
S G Campbell SC (Appellant)
D W Elliott (Respondent)

SOLICITORS:
Moray & Agnew (Appellant)
Gerard Malouf & Partners (Respondent)

CATCHWORDS:
DAMAGES - basis of appellate review of awards of damages - whether damages awarded for non-economic loss, past economic loss and future economic loss were manifestly excessive

LEGISLATION CITED:
Civil Liability Act 2002

DECISION:
Appeal dismissed with costs on the indemnity basis

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40066/2006
DC 2971/2004

McCOLL JA
BASTEN JA
McDOUGALL J

Tuesday 7 November 2006

MARGARET JOPLING  v  CLINTON ISAAC

Judgment

1. McCOLL JA:      I agree with McDougall J.

2. BASTEN JA:  I agree with the reasons of McDougall J and the orders proposed by his Honour.

3. There was a suggestion in the course of oral argument that the imprecision of the plaintiff’s evidence at trial did not permit an award of damages for future economic loss because it did not allow determination of the plaintiff’s “most likely future circumstances but for the injury”, as required by s 13(1) of the Civil Liability Act 2002 (NSW). Underlying such an argument might be a question as to whether the approach explained by Heydon JA in New South Wales v Moss (2000) 54 NSWLR 536 at [87], set out below at [60], remains a correct exposition of legal principle. If s 13 requires some different approach, there are likely to be significant difficulties in assessing reasonable compensation for children who suffer serious injury. In any event, no argument was put based on such inconsistency in approach and accordingly the issue may be left for another time.

4. Nor was it argued that s 13(2) and (3) might preclude a calculation based on a “cushion”, as is sometimes undertaken in assessing compensation in circumstances of uncertainty.

5. McDOUGALL J:  On 10 August 2001, the respondent (Mr Isaac) fell about 3 metres to the ground from the balcony of premises, 1/5 Killick Lane, Crescent Head (the premises).  The appellant (Ms Jopling) was the owner of the premises.  Mr Isaac was living there when the accident occurred.  The accident occurred because a rusted and corroded balcony rail gave way when Mr Isaac leant against it.  He suffered a number of injuries, the most serious of which was a comminuted fracture of the right patella. 

6. Mr Isaac sued Ms Jopling for damages, including non- economic loss, past and future loss of earnings and earning capacity, and the cost of likely further medical and related treatment.  Ms Jopling admitted liability, but alleged that Mr Isaac was guilty of contributory negligence.  The case was heard by McLoughlin DCJ.  His Honour found that Mr Isaac’s damages (before interest and before any allowance…