Najdovski v Crnojlovic

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Case Copied 53 min read
Reported Decision: 72 NSWLR 728

New South Wales


Court of Appeal


CITATION: NAJDOVSKI v CRNOJLOVIC [2008] NSWCA 175
HEARING DATE(S): 29 April 2008
 
JUDGMENT DATE: 
1 August 2008
JUDGMENT OF: Allsop P at 1; Basten JA at 5; Windeyer J at 103
DECISION:

1. Allow the appeal with respect to the assessment of damages and set aside the judgment given on 9 June 2006 in the District Court.

2. Direct the parties to confer with a view to agreeing a figure, or, absent agreement, to provide brief submissions within 28 days as to:
(a) the amount of the substituted judgment, calculated in accordance with this judgment and on the basis that it will take effect from the date of judgment of the trial judge, namely 9 June 2006;
(b) any special order in relation to the basis of assessment of costs.

3. Order the respondents to pay the appellant’s costs of the appeal.
CATCHWORDS: APPEAL – appeal before two judges – matter of legal principle identified – rehearing of appeal – Supreme Court Act 1970 (NSW) s 46A - APPEAL – appeal from District Court on adequacy of damages – right of appeal – jurisdiction of the Court of Appeal – whether Court of Appeal should assess damages for itself – inadequacy of reasons of trial judge – failure to consider relevant and material evidence – Civil Procedure Act 2005 (NSW) s 56 – District Court Act 1973 (NSW) s 127 – Supreme Court Act 1970 (NSW) ss 75A, 105, 107 - DAMAGES – assessment flowing from motor vehicle accident – challenge to adequacy of damages – fair and proper assessment of appellant’s incapacity and disabilities – past and future economic loss – superannuation entitlements – past and future attendant care services – Civil Liability Act 2002 (NSW) ss 3B(2), 15C – Motor Accidents Compensation Act 1999 (NSW) ss 126, 128 – Superannuation Guarantee (Administration) Act 1992 (Cth) - SUPERANNUATION – calculation of lost superannuation entitlements – construction of s 15C of the Civil Liability Act 2002 (NSW) – purposive interpretation – literal interpretation – Civil Liability Act 2002 (NSW) s 15C – Interpretation Act 1987 (NSW) ss 33, 34 – Superannuation Guarantee (Administration) Act 1992 (Cth)
LEGISLATION CITED: Civil Liability Act 2002 (NSW), ss 3B, 13, 15C
Civil Procedure Act 2005 (NSW), s 56
District Court Act 1973 (NSW), s 127
Interpretation Act 1987 (NSW), ss 33, 34
Motor Accidents Compensation Act 1999 (NSW), ss 3, 126, 128, Ch 5
Supreme Court Act 1970 (NSW), ss 46A, 75A, 105, 106, 107
CATEGORY: Principal judgment
CASES CITED: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 244 ALR 257
Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No. 2) [2001] NSWCA 450
Gordon v Ross [2006] NSWCA 157 at [81]
Harrison v Melhem (No 1) [2006] NSWSC 1258
Harrison v…
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Details
Case
[2008] NSWCA 175
Decision Date

CaseChat Overview and Summary

The appeal concerned an assessment of damages awarded in the District Court following a motor vehicle accident. The appellant, Mr. Najdovski, challenged the adequacy of the damages awarded by the trial judge, arguing that the assessment failed to properly consider relevant evidence regarding his incapacity, disabilities, past and future economic loss, superannuation entitlements, and attendant care services. The Court of Appeal was required to determine whether the trial judge's assessment was fair and proper, and whether the Court of Appeal had jurisdiction to re-assess damages itself.

The central legal issues revolved around the adequacy of the damages awarded and the proper interpretation and application of various legislative provisions. Specifically, the court had to consider the construction of section 15C of the *Civil Liability Act 2002* (NSW) concerning the calculation of lost superannuation entitlements, and whether a purposive or literal interpretation was appropriate. The court also had to determine if the trial judge had failed to consider relevant and material evidence, thereby necessitating a re-assessment of damages by the Court of Appeal.

The Court of Appeal found that the trial judge's reasons for the assessment of damages were inadequate and that relevant and material evidence had not been properly considered. Consequently, the court allowed the appeal in relation to the assessment of damages. The court set aside the District Court judgment and directed the parties to confer to agree on a substituted judgment figure, to take effect from the original trial date. If agreement could not be reached, the parties were to provide submissions on the substituted judgment amount and any special orders regarding costs.

Orders

Orders of the court

1. Allow the appeal with respect to the assessment of damages and set aside the judgment given on 9 June 2006 in the District Court. 2. Direct the parties to confer with a view to agreeing a figure, or, absent agreement, to provide brief submissions within 28 days as to: (a) the amount of the substituted judgment, calculated in accordance with this judgment and on the basis that it will take effect from the date of judgment of the trial judge, namely 9 June 2006; (b) any special order in relation to the basis of assessment of costs.

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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