Kallouf v Middis [2008] NSWCA 61 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
11 March 2008
JUDGMENT DATE:
11 April 2008
JUDGMENT OF:
McColl JA; Hall J
DECISION:
1. Appeal allowed. 2. Judgment of District Court Judge Nield of 29 May 2007 set aside and in lieu judgment for the respondent for $635,535. 3. Respondent to pay the costs of the appeal and to have a certificate under the Suitor’s Fund Act 1951 if qualified.
CATCHWORDS:
DAMAGES – appeal - ECONOMIC LOSS – future economic loss – whether finding that respondent lost all wage-earning capacity open on evidence – principles – onus on plaintiff to prove loss of earning capacity – no evidence of work available to injured worker with residual earning capacity – scope of appellate review – finding open to review, but limited by exiguous evidence - DAMAGES – Motor Accidents Compensation Act 1999, s 126 – whether assumptions to found award for future economic loss sufficiently stated.
P A Leslie and M M G Britts, Motor Vehicle Law in New South Wales, 4th ed (1993)
PARTIES:
Nicole Kallouf - Appellant Haydyn Paul Middis - Respondent
FILE NUMBER(S):
CA 40398 of 2007
COUNSEL:
Mr K P Rewell SC - Appellant Mr M Aldridge SC with Ms E E Welsh - Respondent
SOLICITORS:
Ferguson Bolton Lawyers - Appellant Bryden's Law Office - Respondent
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE…
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
Kallouf v Middis [2008] NSWCA 61
Case
[2008] NSWCA 61
Decision Date
CaseChat Overview and Summary
The appeal in *Kallouf v Middis* concerned an assessment of damages for future economic loss. The appellant, Mr. Kallouf, had been awarded damages by the District Court of New South Wales for injuries sustained in a motor vehicle accident. The respondent, Mr. Middis, appealed this decision, primarily challenging the quantum of damages awarded for future economic loss.
The central legal issues before the Court of Appeal were whether the trial judge erred in finding that Mr. Kallouf had lost all wage-earning capacity and, consequently, whether the assumptions underpinning the award for future economic loss were sufficiently stated and supported by evidence. The court was required to consider the principles governing the assessment of future economic loss, including the onus on the plaintiff to prove such loss and the scope of appellate review of findings of fact.
The Court of Appeal found that the trial judge's conclusion that Mr. Kallouf had lost all wage-earning capacity was not sufficiently supported by the evidence. While acknowledging the limited evidence available regarding the availability of work for an injured worker with residual earning capacity, the court held that the finding of total loss of capacity was too broad. The court applied the principles that an award for future economic loss requires proof of actual or likely loss, and that assumptions made by the court must be clearly articulated and justified.
The appeal was allowed, the judgment of the District Court was set aside, and a new judgment was entered for the respondent for $635,535. The respondent was ordered to pay the costs of the appeal and was granted a certificate under the Suitor's Fund Act 1951, if qualified.
Orders
Orders of the court
1. Appeal allowed. 2. Judgment of District Court Judge Nield of 29 May 2007 set aside and in lieu judgment for the respondent for $635,535. 3. Respondent to pay the costs of the appeal and to have a certificate under the Suitor's Fund Act 1951 if qualified.