(1) Judgment for the plaintiff. (2) Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed calculation of damages. (3) Defendant pay plaintiff’s costs. (4) Liberty to apply in relation to costs. (5) Exhibits retained for 28 days.
Catchwords:
TORT – personal injury – assessment of damages – contributory negligence agreed at 60% – past and future economic loss – whether higher than usual percentage of vicissitudes appropriate – past and future home care – no issue of principle
Graycar R, “Damaged Awards: The Vicissitudes of Life as a Woman” (1995) 3 TLJ 160
Category:
Principal judgment
Parties:
Plaintiff: Jeffrey Warren Smith Defendant: Sales Kupu Alone
Representation:
Counsel: Plaintiff: Mr S McCarthy Defendant: Mr R O’Keefe
Solicitors: Plaintiff: AC Lawyers Defendant: Moray & Agnew
File Number(s):
2014/24132
Publication restriction:
None
Judgment
Introduction
The plaintiff, Mr Jeffrey Warren Smith, brings proceedings for damages for personal injury when he was struck by the defendant’s motor vehicle on 17 November 2011.
Liability has been admitted and contributory negligence by the plaintiff (who was affected by alcohol at the time of the accident) agreed at 60%. The remaining issue is the assessment of damages. The following should be noted:
The plaintiff is not entitled to damages…
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
Smith v Alone [2016] NSWDC 265
Case
[2016] NSWDC 265
Decision Date
CaseChat Overview and Summary
The matter of Smith v Alone involved the plaintiff, Smith, who sought compensation for injuries sustained in an accident. The defendant, Alone, was found to be liable for the injuries, and the parties agreed on a 60% contributory negligence on behalf of Smith. The dispute centred on the appropriate assessment of damages, specifically whether a higher than usual percentage of general damages should be awarded due to the vicissitudes of life and the need for both past and future home care. The case was heard and determined in the Supreme Court of Victoria.
The central legal issue before the court was whether the general damages should be increased due to the personal circumstances of Smith, and if so, by what percentage. The court also had to determine the appropriate amount for past and future economic losses, and the costs associated with home care. The plaintiff argued for a higher percentage of general damages to account for the vicissitudes of life, while the defendant contested this, maintaining that the usual percentage should apply.
In delivering the judgment, the court held that while there was no dispute over the principle that a higher percentage of general damages might be appropriate due to the plaintiff’s personal circumstances, the agreed 60% contributory negligence should significantly reduce the overall damages. The court assessed the economic losses and determined that the agreed amount for past and future home care was reasonable. The court found that the agreed calculation of damages was mathematically correct and awarded judgment in favour of the plaintiff. The defendant was ordered to pay the plaintiff's costs, and the parties were granted liberty to bring in short minutes of order to reflect the agreed calculation of damages. The exhibits were to be retained for 28 days.
Orders
Orders of the court
(1) Judgment for the plaintiff.
(2) Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed calculation of damages.