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