Pengelly-Emtage v Lee

The appeal in *Pengelly-Emtage v Lee* concerned an award of damages following a motor vehicle accident. The appellant, the plaintiff in the original proceedings, appealed against the primary judge's decision to decline an award for loss of earning capacity. The respondent was the defendant. The appeal was heard by Penfold, Burns and Ross JJ.

The central legal issues before the appellate court were whether the primary judge had erred in refusing to award damages for loss of earning capacity, and whether the primary judge had provided adequate reasons for preferring one expert opinion over another when faced with contradictory evidence. The court also considered the onus of proof on the appellant to establish an injury that resulted in economic loss.

The appellate court upheld the primary judge's decision, finding no error in the refusal to award damages for loss of earning capacity. The primary judge had made adverse credibility findings in relation to the evidence of the appellant and his mother, which were crucial to the assessment of loss. The court found that the primary judge had adequately explained the reasons for preferring certain expert evidence over other conflicting expert opinions. The onus rested on the appellant to prove the extent of his injury and its consequent economic impact, and this onus had not been discharged to the satisfaction of the primary judge.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.