Mead v Kerney

Case [2012] NSWCA 215


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Mead v Kerney [2012] NSWCA 215
Hearing dates:28 March 2012
Decision date: 23 July 2012
Before: McColl JA at [1]
Macfarlan JA at [2]
Sackville AJA at [51]
Decision:

The appeal and cross-appeal are dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: DAMAGES - personal injury - economic loss - theoretical earning capacity of no value where no reasonable prospect of obtaining work to utilise it - estimation of lost earnings by reference to those of comparable employee
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 60 MVR 194
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Kallouf v Middis [2008] NSWCA 61
Magnou v Australian Wool Testing Authority Ltd [2007] NSWCA 357
Nominal Defendant v Livaja [2011] NSWCA 121
State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536
Texts Cited: Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002), LexisNexis Butterworths
Category:Principal judgment
Parties: John Mead (First Appellant)
Scott Staden-Gaffney (Second Appellant)
Bruce Walter Edward Kerney (Respondent)
Representation: Counsel:
K P Rewell SC (Appellants)
S Norton SC/M Campbell (Respondent)
Solicitors:
Sparke Helmore Lawyers (Appellants)
Brydens (Respondent)
File Number(s):CA 2009/297723
 Decision under appeal 
Citation:
Kerney v Mead & Anor [2011] NSWSC 518
Date of Decision:
2011-06-03 00:00:00
Before:
Garling J
File Number(s):
SC 2009/297723

Judgment

  1. McCOLL JA: I agree with Macfarlan JA.

  1. MACFARLAN JA: On 25 November 2001 the respondent was severely injured in a motor vehicle accident that occurred at Bylong, New South Wales. A vehicle driven by the second appellant, and owned by the first appellant, was on the incorrect side of the road when it collided with a vehicle driven by the respondent. The respondent commenced proceedings against the appellants for damages and the appellants admitted liability.

  1. By judgments dated 3 June and 5 July 2011, Garling J sitting in the Common Law Division of the Court assessed the respondent's damages at $1,756,219 and directed judgment accordingly.

  1. On appeal, the appellants challenged only his Honour's assessment of economic loss. They contended that the primary judge erred in concluding that, although the respondent had a theoretical earning capacity of forty per cent, that capacity was of no value because there was no prospect of him obtaining work to utilise it. By a Notice of Contention, the respondent contended that the effect of the primary judge's reasoning, when considered as a whole, was that the respondent had no residual earning capacity.

  1. By his Notice of Cross-Appeal, the respondent contended that the primary judge erred in:

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Mead v Kerney [2012] NSWCA 215
Case
[2012] NSWCA 215
Decision Date

CaseChat Overview and Summary

In *Mead v Kerney*, the New South Wales Court of Appeal considered an appeal and cross-appeal concerning damages awarded for personal injury, specifically economic loss. The dispute centred on the assessment of the plaintiff's lost earning capacity.

The primary legal issues before the Court of Appeal were whether the trial judge erred in assessing the plaintiff's economic loss by reference to the earnings of comparable employees, and whether the plaintiff's theoretical earning capacity should be valued when there was no reasonable prospect of obtaining work to utilise it.

The Court of Appeal affirmed the principles that theoretical earning capacity has no value if there is no reasonable prospect of obtaining work to utilise it. The Court reasoned that the trial judge had correctly estimated the plaintiff's lost earnings by reference to those of comparable employees, finding that this approach adequately reflected the plaintiff's actual economic loss.

The appeal and cross-appeal were dismissed, with the Court ordering that the parties bear their own costs.

Orders

Orders of the court

The appeal and cross-appeal are dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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