Tran v Younis

[2006] NSWCA 188

NEW SOUTH WALES COURT OF APPEAL

CITATION:    Tran & Anor v Younis [2006]  NSWCA 188

FILE NUMBER(S):
40172 of 2005

HEARING DATE(S):             24 February 2006

DECISION DATE:    14/07/2006

PARTIES:
Con Thanh Tran (First Appellant)
Ha Dang Quach (Second Appellant)
John Sarkis Younis (Respondent)

JUDGMENT OF:      Handley JA Hislop J    

LOWER COURT JURISDICTION:             District Court

LOWER COURT FILE NUMBER(S):        DC 287 of 2003

LOWER COURT JUDICIAL OFFICER:   Delaney DCJ

COUNSEL:
P R Garling SC/P O/Connor/A Ryan (Appellants)
D J Russell SC/P Dooley (Respondent)

SOLICITORS:
Holman Webb (Appellants)
Ray Wehbe & Co (Respondent)

CATCHWORDS:
DAMAGES – appeal – reassessment – no question of principle
DAMAGES – motor accidents – Motor Accidents Compensation Act 1999 s 126 – most likely future circumstances – multiple findings permissible
ND

LEGISLATION CITED:
Motor Accidents Compensation Act 1999

DECISION:
1.  Appeal allowed.
2.  Set aside the judgment in the District Court for $526,255.85 and substitute a judgment for the plaintiff for $382,505.85 with effect from 24 February 2005.
3.  If consent orders dealing with costs are not filed in the submissions box on level 12 within 14 days the appellant is to file and serve written submissions directed to the issue of costs within a further 7 days.  The respondent is to file and serve written submissions dealing with costs within a further 7 days.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40172 of 2005

HANDLEY JA
HISLOP J

14 JULY 2006

CON THANH TRAN & ANOR v JOHN SARKIS YOUNIS

CATCHWORDS

DAMAGES – appeal – reassessment – no question of principle

DAMAGES – motor accidents – Motor Accidents Compensation Act 1999 s 126 – most likely future circumstances – multiple findings permissible

FACTS

The appeal challenged an award of $250,000 for future economic loss.  The trial Judge found that the plaintiff was capable of re-entering the workforce and gaining employment albeit with a reduced capacity.  The Judge noted the defendants’ failure to lead any evidence as to the availability of suitable work for the plaintiff.  HELD: (1) The Judge erred in treating the defendant as having an onus of leading evidence as to the availability of work for the plaintiff as injured; (2) Damages are awarded for loss of earning capacity not earnings as such but an award is only made where the diminution in earning capacity is or may be productive of financial loss: Medlin v The State Government Insurance Commission (1995) 182 CLR 1, 16; Graham v Baker (1961) 106 CLR 340, 347; (3) The Judge’s calculation of future economic loss was inconsistent with his findings as to the plaintiff’s residual capacity for work; (4) The Court had to intervene and reassess in accordance with s 126 of the Motor Accidents Compensation Act 1999 and The Nominal Defendant v Lane [2004] NSWCA 405, paras [64]-[67]; (5) There being no specific evidence as to the plaintiff’s probable future earnings uninjured, the Judge was entitled to adopt the average weekly earnings in the relevant occupation as…