Kenair Seaplanes Pty Ltd v Lewis

[2003] NSWCA 221

CITATION:	Kenair Seaplanes Pty Ltd v Lewis [2003] NSWCA 221 revised - 29/08/2003
HEARING DATE(S):	25 August 2003
JUDGMENT DATE:	25 August 2003
JUDGMENT OF:	Handley JA at 1; Tobias JA at 1; Foster AJA at 1
DECISION:	Appeal allowed with costs (see para 3)
CATCHWORDS:	Damages - Reasons - No question of principles
LEGISLATION CITED:	Civil Aviation (Carriers Liability) Act 1967
CASES CITED:	Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
PARTIES :	Kenair Seaplanes Pty Ltd (Appellant) Colin Owen Lewis (Respondent)
FILE NUMBER(S):	CA 41216/02
COUNSEL:	J Sharpe (Appellant) S Galitsky (Respondent)
SOLICITORS:	Ebsworth & Ebsworth (Appellant) Haylen McKenzie (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4025/00
LOWER COURT JUDICIAL OFFICER :	Bellear DCJ

41216 of 2002

HANDLEY JA
TOBIAS JA
FOSTER AJA

25 AUGUST 2003

KENAIR SEAPLANES PTY LTD v COLIN OWEN LEWIS

Judgment

1 THE COURT: This is an appeal by the defendant from a judgment of Bellear DCJ of 2 October 2002. The proceedings arose out of the crash of a light seaplane at Berowra Waters on 7 June 1998. Under the Civil Aviation (Carriers Liability) Act 1967, liability was strict, subject to a cap on damages. As a result the only issue before the Judge was quantum. His Honour assessed damages including pre-judgment interest, in the sum of $309,076.30. The appellant has limited its challenges to the awards of $80,000 for general damages, $40,000 for past economic loss of earning capacity and $160,680 for future loss of earning capacity.

2 His Honour’s findings as to the extent of the plaintiff’s physical injuries arising from the accident and the extent and duration of his post-traumatic stress disorder are too sparse to enable this Court to allow the award of $80,000 for general damages to stand. The same problems arise with respect to his Honour’s awards for past and future economic loss, although there are additional problems with those awards. His Honour made no findings which support his award of $40,000 for past economic loss. Indeed on one reading of his judgment that award is inconsistent with his express findings. The same problems arise with the award for future economic loss, but there are additional problems with this award. His Honour did not apply the usual discount of 15% for contingencies or explain why he did not do so. Moreover without giving reasons he awarded a so called buffer of $15,000 in addition to the quantified loss which is contrary to general practice in personal injury cases and is not supported by principle.

3 In these circumstances the Court has concluded that the case is covered by the decision in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. His Honour’s reasons are inadequate and the Court has no option but to grant a new trial limited to damages. The Court will therefore make the following orders:

1. Appeal allowed with costs.

2. Judgment for the plaintiff except as to liability and costs set aside.

3. Order that there be a new trial as to damages limited to general damages and past and future economic loss other than past and future out-of-pocket expenses. Such trial is to be conducted by a judge other than Bellear DCJ.

4. Pursuant to SCR Pt 51 r 23, the Court orders that the new trial as to those heads of damages shall not reopen the findings of Bellear DCJ in his judgment of 2 October 2002 in para E “Heart Attack” subpara (2) and para J “Economic Loss” subpara (3).

5. The testimony of Dr Canaris at the first trial may be read from the transcript instead of the witness being again examined as to the matters in the transcript.

6. Any claim for solicitor and client costs in respect of the proceedings up to and including the first trial is reserved to the Judge presiding at the new trial.

7. The respondent is to have a certificate under the Suitors Fund Act for the costs of the appeal.

4 Anything further Mr Sharpe?

5 SHARPE: Nothing.

6 HANDLEY JA: Mr Galitsky?

7 GALITSKY: No.

8 HANDLEY JA: What I have delivered is the Judgment of the Court.

Mr Sharpe an interim payment has been made pursuant to Bellear DCJ’s order. It is not the Court’s intention that that payment should be disturbed for the time being. You have not asked us to do that.

9 SHARPE: No Your Honour.

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Last Modified: 09/02/2003