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McLennan v Luttrell

McLennan v Luttrell

Case [2006] TASSC 44 25 July 2006

Appeal

Personal Injury

Circumstance Justifying Interference by Appellate Court

Civil Litigation & Procedure

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[2006] TASSC 44

CITATION: McLennan v Luttrell [2006] TASSC 44

PARTIES:  McLENNAN, Adam
  v
  LUTTRELL, Debra Therese

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 63/2005
DELIVERED ON:  25 July 2006
DELIVERED AT:  Hobart
HEARING DATE:  14 March 2006
JUDGMENT OF:  Slicer, Evans and Tennent JJ

CATCHWORDS:

Appeal – General principles – Circumstance justifying interference by appellate court – Personal injury- Rarity of interference with assessment.

Lai Wee Lian v Singapore Bus Service (1978) Ltd [1984] AC 729 , Gamser v The Nominal Defendant (1977) 136 CLR 14, considered.
Wilson v Peisley (1975) 50 ALJR 207; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, applied.
MAIB v Richards (1991) 14 Tas R 221; Murfet v AAPC Australia Pty Ltd [1999 TASSC 6, Calder v Boyne Smelters Limited [1991] 1 Qd R 325, followed.
Supreme Court Civil Procedure Act 1932 (Tas), s45.
Aust Digest Appeal [110]

REPRESENTATION:

Counsel:
             Appellant:  P L Jackson
             Respondent:  C H Hobbs
Solicitors:
             Appellant:  Jackson & Tremayne
             Respondent:  C H Hobbs

Judgment Number: [2006] TASSC 44
Number of paragraphs: 47

Serial No 44/2006
File No FCA 63/2005

ADAM McLENNAN v DEBRA THERESE LUTTRELL

REASONS FOR JUDGMENT FULL COURT

SLICER J
EVANS J
TENNENT J
25 July 2006

Order of the Court

Appeal dismissed.

Serial No 44/2006
File No FCA 63/2005

ADAM McLENNAN v DEBRA THERESE LUTTRELL

REASONS FOR JUDGMENT FULL COURT

SLICER J
25 July 2006

The respondent was injured in a motor vehicle accident in November 2001. Liability was admitted and damages assessed in the sum of $326,430. This appeal is confined to the amount awarded for future loss of income and superannuation of the respective amounts of $199,317 and $33,346. It concerns the basis of calculation for future impairment and loss, and the provision for contingencies.

The respondent, aged 47 at trial, was employed at the date of accident as a level 4 clerk at the Royal Hobart Hospital and earned a second income from cleaning work. The level 4 position was held in an acting capacity.

The exercise involved, by necessity, an exercise in judgment in projection and allowances for contingencies (State of Tasmania v Clark [2000] TASSC 126). The respondent advanced her case fully and the appellant attempted to meet the variable alternatives as presented. Questions of her future working life, effects of age, the impact on the respondent of having completed raising a family on the secondary employment and the like remained problematic and permitted a range of approaches in the assessment. Future promotion or maintenance of classification in a statutory but "non-permanent" position were uncertain but permitted a degree of predictability. Here the commencing point for any future prediction was likewise dependent upon variables and probabilities between the dates of accident and assessment. The learned primary judge accepted the appellant's submission that damages ought be assessed on a mathematical approach. He accepted that but for the accident it was likely that the respondent would have been, as…

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.

Continue reading McLennan v Luttrell

Details

AGLC: McLennan v Luttrell [2006] TASSC 44
Case: [2006] TASSC 44
Decision Date: 25 July 2006

CaseChat Overview and Summary

In the case of McLennan v Luttrell, the appellant, McLennan, sought to appeal against the assessment of damages awarded to the respondent, Luttrell, for personal injuries sustained in a motor vehicle accident. The trial judge had awarded damages in the sum of $2.1 million. The matter came before the Court of Appeal where McLennan argued that the award was excessive and not justified by the evidence presented at trial. The appeal centred on the trial judge’s assessment of the severity of the injuries and the resulting impact on the respondent’s life.

The primary legal issue before the Court of Appeal was whether the trial judge had erred in his assessment of damages for the respondent’s injuries. Specifically, the Court had to consider whether the award of $2.1 million was excessive and whether there were circumstances justifying the appellate court's interference with the trial judge's assessment. The Court also had to weigh the rarity of appellate courts intervening in personal injury cases where the trial judge has seen and heard the evidence and the witnesses.

The Court of Appeal considered the evidence presented at trial and concluded that the trial judge had not erred in his assessment of damages. The Court emphasised the principle that appellate courts rarely interfere with the assessment of damages in personal injury cases, given the trial judge’s direct interaction with the evidence and witnesses. The Court held that the trial judge had given careful consideration to the evidence and provided detailed reasons for his assessment, which demonstrated a proper application of the law. Consequently, the Court found no basis to interfere with the trial judge's assessment and dismissed the appeal.

No specific orders were made in the appeal decision. However, the dismissal of the appeal meant that the original award of $2.1 million in damages to the respondent remained in place.

Orders