NEW SOUTH WALES COURT OF APPEAL
CITATION: OWNERS- STRATA PLAN 156 v GRAY [2004] NSWCA 304 revised - 8/09/2004
FILE NUMBER(S):
40944/03
HEARING DATE(S): 13 August 2004
JUDGMENT DATE: 03/09/2004
PARTIES:
Owners - Strata Plan 156 - Appellant
Deborah Elizabeth Gray - Respondent
JUDGMENT OF: Sheller JA Gzell J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 9895/02
LOWER COURT JUDICIAL OFFICER: Graham DCJ
COUNSEL:
I G Harrison SC/K E Poulos - Appellant
J E Maconachie QC/D C Morgan - Respondent
SOLICITORS:
A R Connolly & Co - Appellant
Steve Masselos & Co - Respondent
CATCHWORDS:
ASSESSMENT OF DAMAGES - injury to ankle - effect on employment and ability to play sport - whether damages awarded for non-economic loss, future economic loss, future domestic assistance and loss of future superannuation were manifestly excessive - meaning of 'most extreme case'.
LEGISLATION CITED:
Civil Liability Act 2002
Motor Accidents Act 1988
DECISION:
1. Appeal allowed
2. Cross-appeal allowed
3. The appellant within seven (7) days to file short minutes of orders. The parties within seven (7) days to file written submissions, if required, relating to costs and restitution.
JUDGMENT:
- 35 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40944/03
DC 9895/00SHELLER JA
GZELL J
OWNERS OF STRATA PLAN 156 v GRAY
On 2 September 2000, the respondent tripped and fell on stairs at the premises where she lived which were owned by the appellant. As a result she injured her ankle. The appellant conceded liability for damages arising from this injury. Prior to this accident, the respondent had been an active sportswoman and was employed as a dealer at Star City Casino. The appellant’s injury precluded her from continuing with this employment and also limited her ability to play competitive sports.
On 14 October 2003, in a trial limited to damages, Judge Graham, after consideration of the medical evidence, held that the respondent had a significant injury, had significant disability and incapacity and was likely to retain such a disability and incapacity for the indefinite future. His Honour awarded the respondent $288,544 in damages. This total included $127,000 for non-economic loss, $31,437 for future domestic assistance after a deduction of 15 percent for vicissitudes, $12,618 for past economic loss, $77,945 for future economic loss and $7,015 for future superannuation.
The appellant appealed on the basis that Judge Graham erred in awarding damages for non-economic loss of 33% of a most extreme case and that the amounts awarded for future economic loss, future domestic assistance and loss of future superannuation were manifestly excessive. It was submitted that the respondent’s injury was, in lay terms, a serious sprain and that she had significantly adjusted to the injury. It was also contended that the respondent had only a short time off work and did not complain to any medical practitioner in relation to her injury, of her own accord, after November 2000.
By leave of the Court, the respondent cross-appealed against the trial Judge’s deduction of 15…
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- AGLC
- Owners - Strata Plan 156 v Gray [2004] NSWCA 304
- Case
- [2004] NSWCA 304
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent to which the plaintiff's ankle injury impacted her employment and ability to participate in sport, and whether the quantum of damages awarded reflected these impacts appropriately. Specifically, the court had to consider if the awarded damages met the threshold for an "extreme case" as contemplated by the relevant legislation.
In his reasons, Judge Graham found the plaintiff to be an honest witness whose evidence reflected genuine concessions. He considered it significant that the plaintiff had to forgo her employment as a dealer, a position she had trained for and was prepared to wait for. The court noted the absence of reports from certain medical professionals and inferred that any such reports would not have aided the defendant's case. The plaintiff's diligent pursuit of medical advice and self-treatment was also seen as consistent with her approach to her disabilities. The court acknowledged that the ankle injury was significant and that the plaintiff suffered a substantial and likely indefinite disability and incapacity, with medical evidence largely supporting this conclusion.
The appeal was allowed, and the cross-appeal was also allowed. The appellant was directed to file short minutes of orders within seven days, and the parties were to file written submissions regarding costs and restitution within the same timeframe.
Orders
Orders of the court
1. Appeal allowed
2. Cross-appeal allowed
3. The appellant within seven (7) days to file short minutes of orders. The parties within seven (7) days to file written submissions, if required, relating to costs and restitution.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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