Smithson v Baines - [1999] NSWCA 48

CITATION: Smithson v Baines [1999] NSWCA 48

FILE NUMBER(S): CA 40248/98

HEARING DATE(S): 11 February 1999

JUDGMENT DATE:
18 March 1999

PARTIES :

Gail Joy SMITHSON and Janet SMITHSON
v
Russell George BAINES

JUDGMENT OF: Beazley JA; Fitzgerald JA; Sheppard AJA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S) : CLD 14163/91

LOWER COURT JUDICIAL OFFICER: Dowd J

COUNSEL: A - CRR Hoeben SC
R - JS Coombs QC; RI Goodridge

SOLICITORS: A - Abbott Tout, Sydney
R - Firths, Sydney

CATCHWORDS: DAMAGES - Motor vehicle accident - Use of gross rather than net figures - Application of slip rule - Whether principle established in Kempsey District Hospital v Thackham applicable.

ACTS CITED: Workers Compensation Act 1987

CASES CITED:
Kempsey District Hospital v Thackham (1995) 36 NSWLR 492

DECISION: Orders of trial Judge to be varied

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40248/98
CLD 14163/91
BEAZLEY JA
FITZGERALD JA
SHEPPARD AJA
Thursday, 18 March 1999

Gail Joy SMITHSON & Anor v Russell George BAINES

HEADNOTE
DAMAGES - Respondent injured in motor vehicle accident - Challenge by appellants to award of damages by trial judge because judge used gross, rather than net, earnings figures and had failed to make a deduction from the amount to be awarded of the amount of workers' compensation likely to be recovered by the respondent in respect of a subsequent injury suffered in the course of the respondent's employment - Judge purported to correct error of the use of gross figures instead of net figures by application of slip rule - Discussion of ambit of slip rule - Discussion of principle established in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 - Judgment reduced in order to take account of net rather than gross earnings - Thackham not applied because medical evidence and findings thereon of trial judge did not warrant it being applied.

ORDERS
The Court directs the parties, on or before 1 April 1999, to:
1 bring in short minutes of order to give effect to the Court's decision.
2 in the event that the parties are not in agreement about the form of those short minutes, to lodge written submissions in support of their contentions.
3 in any event, lodge submissions as to the appropriate order to be made in relation to the costs of the appeal.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40248/98
CLD 14163/91
BEAZLEY JA
FITZGERALD JA
SHEPPARD AJA
Thursday, 18 March 1999

Gail Joy SMITHSON & Anor v Russell George BAINES

JUDGMENT

1 BEAZLEY JA: I agree with Sheppard AJA.
2 FITZGERALD JA: The circumstances giving rise to this appeal are set out in the reasons for judgment of Sheppard AJA. Since Beazley JA has agreed with his Honour’s reasons and proposed orders, I will state my reasons for my contrary conclusion briefly.
3 While I agree with most of what is stated by Sheppard AJA and that the appeal should…

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.

Keep reading for free

Create a free CaseChat account to read Smithson v Baines and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] NSWCA 48
Decision Date: 18 March 1999

CaseChat Overview and Summary

In *Smithson v Baines*, the New South Wales Court of Appeal considered an appeal concerning damages awarded following a motor vehicle accident. The dispute centred on the calculation of damages, specifically whether gross rather than net figures should be used, and the applicability of the principle established in *Kempsey District Hospital v Thackham*.

The Court was required to determine whether the trial judge had erred in applying the "slip rule" in the context of calculating damages. A key legal issue was whether the principle articulated in *Kempsey District Hospital v Thackham*, which deals with the correction of clerical errors, was applicable to the substantive assessment of damages in this instance.

The Court of Appeal found that the trial judge had incorrectly applied the principle from *Kempsey District Hospital v Thackham*. The Court reasoned that the issue was not a mere clerical error but a substantive error in the assessment of damages, which could not be rectified under the slip rule. Consequently, the Court ordered that the orders of the trial judge be varied.

Orders

Orders of the court

Orders of trial Judge to be varied

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Smithson v Baines [1999] NSWCA 48
FILE NUMBER(S):	CA 40248/98
HEARING DATE(S):	11 February 1999
JUDGMENT DATE:	18 March 1999
PARTIES :	Gail Joy SMITHSON and Janet SMITHSON v Russell George BAINES
JUDGMENT OF:	Beazley JA; Fitzgerald JA; Sheppard AJA

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 14163/91
LOWER COURT JUDICIAL OFFICER:	Dowd J

COUNSEL:	A - CRR Hoeben SC R - JS Coombs QC; RI Goodridge
SOLICITORS:	A - Abbott Tout, Sydney R - Firths, Sydney
CATCHWORDS:	DAMAGES - Motor vehicle accident - Use of gross rather than net figures - Application of slip rule - Whether principle established in Kempsey District Hospital v Thackham applicable.
ACTS CITED:	Workers Compensation Act 1987
CASES CITED:	Kempsey District Hospital v Thackham (1995) 36 NSWLR 492
DECISION:	Orders of trial Judge to be varied