Smith v Alone

Case [2017] NSWCA 287

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Smith v Alone [2017] NSWCA 287
Hearing dates:27 July 2017
Decision date: 10 November 2017
Before: Macfarlan JA at [1];
Meagher JA at [80];
White JA at [81]
Decision:

(1)   Direct the parties to attempt to agree upon a form of orders to give effect to these reasons for judgment.

 (2)   If the parties are unable to agree upon short minutes of order, and to lodge them with the Court within 14 days of this judgment, direct the appellant within a further 7 days to file and serve his proposed short minutes of order with supporting submissions. The respondent is directed to do likewise within a further 7 days and any reply by the appellant is to be filed within a further 7 days.
Catchwords: NEGLIGENCE – damages – motor vehicle accident – whether primary judge erred in reducing appellant’s damages on the basis that, after a period of treatment, he would have residual earning capacity – whether primary judge erred in discounting damages by 35% for vicissitudes on the basis of consequences of appellant’s alcohol addiction – whether primary judge erred in declining to award damages for the cost of future commercial care where care currently provided for by family members
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), s 141B
Cases Cited: Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13
ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kallouf v Middis [2008] NSWCA 61
Kwong v Abdulwahab [2016] Aust Torts Reports 82-268; NSWCA 107
Mead v Kerney [2012] NSWCA 215
Miller v Galderisi [2009] NSWCA 353
Nominal Defendant v Livaja [2011] NSWCA 121
South Western Sydney Local Health District v Sorbello [2017] NSWCA 201
State of New South Wales v Maxwell [2007] NSWCA 53
Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293
Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore [2009] NSWCA 117
White v Benjamin (2015) 70 MVR 188; [2015] NSWCA 75
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53
Texts Cited: Harold Luntz, Assessment of Damages for Personal Injury and Death, (3rd ed 1990, Butterworths)
Category:Principal judgment
Parties: Jeffrey Warren Smith (Appellant)
Sales Kupu Alone (Respondent)
Representation:

Counsel:
R S McIlwaine SC / S E McCarthy (Appellant)
R O’Keefe (Respondent)

  Solicitors:
AC Lawyers (Appellant)
Moray & Agnew Lawyers (Respondent)
File Number(s):CA 2016/341574
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Civil
Citation:
[2016] NSWDC 265
Date of Decision:
25 October 2016
Before:
Gibson DCJ
File Number(s):
DC 2014/24132

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2011 the appellant was injured when he was struck by a motor vehicle driven by the respondent. In District Court proceedings commenced by the appellant, the respondent admitted liability and the parties agreed that damages should be reduced…

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Smith v Alone [2017] NSWCA 287
Case
[2017] NSWCA 287
Decision Date

CaseChat Overview and Summary

In *Smith v Alone*, the appellant, who had suffered injuries in a motor vehicle accident, appealed a decision of the primary judge concerning the assessment of damages. The dispute centred on the primary judge's findings regarding the appellant's residual earning capacity, the application of a vicissitudes discount, and the refusal to award damages for future commercial care. The appeal was heard by Macfarlan, Meagher and White JJA in the Court of Appeal.

The key legal issues before the Court of Appeal were whether the primary judge had erred in reducing the appellant's damages by finding he would retain a residual earning capacity after a period of treatment, whether the 35% discount for vicissitudes was wrongly applied on the basis of the consequences of the appellant's alcohol addiction, and whether the primary judge was correct in declining to award damages for the cost of future commercial care when such care was being provided by family members.

The Court of Appeal allowed the appeal in part. It found that the primary judge had erred in reducing the appellant's damages for residual earning capacity, holding that the evidence did not support such a reduction. The Court also found that the 35% discount for vicissitudes was not justified on the grounds of alcohol addiction, as this was not a factor that should have been considered in that manner. However, the Court upheld the primary judge's decision not to award damages for future commercial care, concluding that the provision of care by family members meant that the appellant had not incurred, and was unlikely to incur, the cost of commercial care.

The Court directed the parties to attempt to agree upon the form of orders to give effect to its reasons. If agreement could not be reached within 14 days, the appellant was to file proposed orders and submissions, followed by the respondent, with a further opportunity for reply by the appellant.

Orders

Orders of the court

(1) Direct the parties to attempt to agree upon a form of orders to give effect to these reasons for judgment.

(2) If the parties are unable to agree upon short minutes of order, and to lodge them with the Court within 14 days of this judgment, direct the appellant within a further 7 days to file and serve his proposed short minutes of order with supporting submissions. The respondent is directed to do likewise within a further 7 days and any reply by the appellant is to be filed within a further 7 days.

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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