Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Sutherland Shire Council v Major [2015] NSWCA 243 Hearing dates: 16 July 2015 Date of orders: 20 August 2015 Decision date: 20 August 2015 Before: McColl JA at [1];
Emmett JA at [2];
Sackville JA at [68]Decision: 1 Appeal be allowed.
2 Orders entered by the District Court on 15 July 2014, except as to costs, be set aside, and in lieu thereof, there be verdict and judgment for the plaintiff in the sum of $136,419.
3 Orders for costs made by the District Court stand.
4 The respondent pay 75% of the appellant’s costs of the appeal.
5 If otherwise entitled, the respondent have a certificate under the Suitors’ Fund Act 1951 (NSW).Catchwords: DAMAGES – personal injury – non-economic loss – whether the primary judge made a wholly erroneous estimate of the damages suffered – use of earlier decisions of courts for the purpose of establishing an appropriate award – Civil Liability Act 2002 (NSW), s 17A
DAMAGES – personal injury – past and future economic loss – use of buffer – whether the primary judge made a wholly erroneous estimate of the damages suffered
DAMAGES – personal injury – paid domestic assistance – whether the evidence established the likelihood of a future need for domestic assistanceLegislation Cited: Civil Liability Act 2002 (NSW), ss 3, 13, 16, 17A Cases Cited: Allard v Jones Lang LaSalle (Vic) Pty Ltd [2014] NSWCA 325
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302
Cockburn v The Trust Company Ltd (No 2) [2014] NSWDC 119
Dell v Dalton (1991) 23 NSWLR 528
Husher v Husher [1999] HCA 47; 197 CLR 138
Jackson v Mazzafero [2012] NSWCA 170
Khan v Polyzois [2006] NSWCA 59
Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
Miller v Galderisi [2009] NSWCA 353
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Precision Plastics Pty Ltd v Demir [1975] HCA 27; 132 CLR 362
State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536Category: Principal judgment Parties: Sutherland Shire Council (Appellant)
Bradley Major (Respondent)Representation: Counsel:
Solicitors:
R Sheldon SC with N Hogan (Appellant)
R Cavanagh SC with B Tzatzagos (Respondent)
Mills Oakley Lawyers (Appellant)
Brydens Compensation Lawyers (Respondent)
File Number(s): 2014/230413 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Date of Decision:
- 9 July 2014
- Before:
- Cogswell DCJ
- File Number(s):
- 2013/110928
Judgment
-
McCOLL JA: I agree with Emmett JA’s reasons, save in respect to future economic loss. In that respect I agree with Sackville AJA.
-
EMMETT JA: This appeal concerns the assessment of damages for personal injury suffered by the respondent, Mr Bradley Major, when, on 18 January 2012, a railing on which he was sitting gave way, causing him to land heavily on his buttocks and then roll down an embankment. The appellant, Sutherland Shire Council (the Council
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- Case
- [2015] NSWCA 243
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the primary judge had made a wholly erroneous estimate of the damages suffered by the respondent, particularly in relation to non-economic loss, and whether the evidence supported the primary judge's findings regarding the need for future paid domestic assistance. The court also considered the appropriate use of previous judicial decisions in assessing damages and the application of a "buffer" in calculating economic loss.
The Court of Appeal found that the primary judge had erred in their assessment of damages. Specifically, the court determined that the award for non-economic loss was demonstrably too high, applying the principles that earlier decisions are guides and not rigid rules, and that the assessment must be based on the evidence. The court also found that the evidence did not sufficiently establish the likelihood of a future need for paid domestic assistance. Consequently, the Court of Appeal allowed the appeal, setting aside the District Court's orders and entering a reduced verdict and judgment for the respondent. The court also made orders regarding the costs of the appeal.
Orders
Orders of the court
1 Appeal be allowed.
2 Orders entered by the District Court on 15 July 2014, except as to costs, be set aside, and in lieu thereof, there be verdict and judgment for the plaintiff in the sum of $136,419.
3 Orders for costs made by the District Court stand.
4 The respondent pay 75% of the appellant’s costs of the appeal.
5 If otherwise entitled, the respondent have a certificate under the Suitors’ Fund Act 1951 (NSW).
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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