McKenzie v Wood

Case [2015] NSWCA 142

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: McKenzie v Wood [2015] NSWCA 142
Hearing dates:18 May 2015
Decision date: 18 May 2015
Before: Ward JA at [1];
Leeming JA at [1];
Sackville AJA at [1]
Decision:

1.  Appeal allowed in respect of grounds 6 and 7, and otherwise dismissed.

2.  Costs to be dealt with upon submissions being made.

3.  Direct that the parties prepare draft minutes of order to reflect the Court’s reasons and that any submissions in relation to the matters identified by the respondent be served within 21 days, with a response from the appellants within 7 days thereafter. If the matter cannot be resolved by agreement, then the matter will be dealt with on the papers.

Catchwords: DAMAGES - personal injury - liability conceded - challenge to inclusion of cost of hip replacement - plaintiff suffering from early primary osteoarthritis prior to accident - accident caused hip replacement to become urgent - challenge to assessment of non-economic loss - challenge to allowance of 15% for vicissitudes - no appellable error shown to be established - no question of principle
Legislation Cited: District Court Act 1973 (NSW), s 127
Uniform Civil Procedure Rules 2005 (NSW) Pt 51, rr 51.18, 51.36
Cases Cited: Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370
Gray v Richards (No 2) [2011] NSWSC 1502
Hall v State of New South Wales [2014] NSWCA 154
House v The King (1936) 55 CLR 499
Purkess v Crittenden (1965) 114 CLR 164
Thiering v Daly [2013] NSWCA 25
Warren v Coombes (1979) 142 CLR 531
Watts v Rake (1960) 108 CLR 158
Category:Principal judgment
Parties: Brad McKenzie (Appellant)
Mark Wood (Respondent)
Representation:

Counsel:
S Harben SC (Appellant)
A Stone, K James (Respondent)

Solicitors:
McInnes Wilson Lawyers NSW (Appellant)
John McGuire & Associates (Respondent)
File Number(s):2013/191985
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Date of Decision:
3 June 2013
Before:
Murrell SC DCJ
File Number(s):
2012/53231

ex Tempore Judgment

  1. JUDGMENT of the COURT delivered by LEEMING JA: On 4 September 2009, the respondent Mr Mark Wood was very badly injured when a front seat passenger in a vehicle accident on a work-related journey. The defendant, now the appellant, was the driver of the other vehicle. Liability was admitted. Following a five day trial, the primary judge delivered careful and full reasons on the following Monday ordering a judgment in the amount of $1,796,450 plus costs. The appeal is confined to particular aspects of her Honour’s assessment of damages.

  2. The appeal to this Court is as of right, pursuant to s 127 of the District Court Act 1973 (NSW). Complete success by the appellant on the grounds raised in his notice of appeal would diminish the damages awarded by an amount in the order of $300,000.

  3. There were originally nine grounds of appeal. One (ground 8) has been withdrawn, and it is acknowledged that another (ground 9) is wholly derivative upon the remaining…

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AGLC
McKenzie v Wood [2015] NSWCA 142
Case
[2015] NSWCA 142
Decision Date

CaseChat Overview and Summary

The appeal in *McKenzie v Wood* concerned a challenge to a damages award for personal injury. The plaintiff had suffered from early primary osteoarthritis prior to the accident, which the defendant conceded caused the hip replacement surgery to become urgent. The appeal focused on the inclusion of the cost of this hip replacement in the damages award and the assessment of non-economic loss, including a 15% allowance for vicissitudes.

The primary legal issues before the Court of Appeal were whether the primary judge had erred in including the cost of the hip replacement surgery in the damages award, and whether the assessment of non-economic loss, including the vicissitudes allowance, was demonstrably wrong. The appellants sought to establish an appellable error, particularly a question of principle, in the primary judge's findings.

The Court of Appeal found no appellable error in the primary judge's decision regarding the inclusion of the hip replacement cost, nor in the assessment of non-economic loss or the vicissitudes allowance. The court determined that the primary judge had correctly applied the relevant legal principles to the facts of the case, and that the appellants had failed to demonstrate any error of law or fact that would warrant appellate intervention.

However, the appeal was allowed in respect of grounds 6 and 7, with the remainder of the appeal being dismissed. The parties were directed to prepare draft minutes of order to reflect the Court’s reasons, with further submissions to be made regarding any unresolved matters.

Orders

Orders of the court

1. Appeal allowed in respect of grounds 6 and 7, and otherwise dismissed.

2. Costs to be dealt with upon submissions being made.

3. Direct that the parties prepare draft minutes of order to reflect the Court’s reasons and that any submissions in relation to the matters identified by the respondent be served within 21 days, with a response from the appellants within 7 days thereafter. If the matter cannot be resolved by agreement, then the matter will be dealt with on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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