Kallouf v Middis

Case [2008] NSWCA 61



New South Wales


Court of Appeal


CITATION: 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.
LEGISLATION CITED: Civil Liability Act 2002
Motor Accidents Compensation Act 1999
Suitor’s Fund Act 1951
CATEGORY: Principal judgment
CASES CITED: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120
Ahmedi v Ahmedi (1991) 23 NSWLR 288
Arthur Robinson (Grafton) Pty Limited v Carter [1968] HCA 9; (1968) 122 CLR 649
Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Kealley v Jones [1979] 1 NSWLR 723
Linsell v Robson [1976] 1 NSWLR 249
Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145
Magnou v Australian Wool Testing Authority Limited [2007] NSWCA 357
McCracken v Melbourne Storm Rugby League Football Club Limited [2007] NSWCA 353
Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Morgan v Costello [2004] WASCA 260
Penrith City Council v Parkes [2004] NSWCA 201
Rabay v Bristow [2005] NSWCA 199
State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
The Nominal Defendant v Lane [2004] NSWCA 405
Tran v Younis [2006] NSWCA 188
Wade v Allsopp (1976) 10 ALR 353
Wilson v Peisley (1975) 50 ALJR 207
Yammine v Kalwy [1979] 2 NSWLR 151
Zorom Enterprises Pty Ltd (in liq) v Zabow [2007] NSWCA 106
TEXTS CITED: 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…

Continue reading Kallouf v Middis

Sign in free to access the full text

Details
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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.