Smith v Alone

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.