LEE v ABBES [2003] NSWCA 24

LEE v ABBES [2003] NSWCA 24

The trial Judge's reduction from the mathematical past economic loss figure was fully accounted for by contingencies and made no allowance for retained earning capacity. On the findings and medical evidence accepted below, the opponent retained approximately 70 per cent work capacity, so the past economic loss award had to be reduced to $15,000. For costs, the defendant had initiated further litigation after the arbitration and ended worse off than if he had accepted the arbitrator's award, which constituted exceptional circumstances justifying a special order that the defendant pay the plaintiff's arbitration and District Court costs.

Jurisdiction
Australia
Judgment Date
06 February 2003
Procedural Posture
Damages for Personal Injuries Arising From a Motor Vehicle Accident / Summons for Leave to Appeal From a District Court Decision After Arbitration and Rehearing
Outcome
Leave to appeal granted. Appeal allowed with costs. Orders made, including a special costs order.
Legal Topics
['assessment of Past Economic Loss' 'retained Earning Capacity' 'motor Vehicle Accident Damages' 'arbitration Rehearing' 'offer of Compromise' 'exceptional Circumstances Costs Order']
['torts' 'personal Injury' 'civil Procedure' 'costs'] ['assessment of Past Economic Loss' 'retained Earning Capacity' 'motor Vehicle Accident Damages' 'arbitration Rehearing' 'offer of Compromise' 'exceptional Circumstances Costs Order']

Case Brief

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Procedural Posture

Damages for Personal Injuries Arising From a Motor Vehicle Accident / Summons for Leave to Appeal From a District Court Decision After Arbitration and Rehearing

Legal Issues

  1. 1 ["Whether the District Court assessment of past economic loss contained significant error by failing to allow for the opponent's retained earning capacity." 'Whether the Court of Appeal should reassess past economic loss rather than remit the matter.' 'Whether exceptional circumstances justified a special costs order despite an offer of compromise.']

Ratio Decidendi

The trial Judge's reduction from the mathematical past economic loss figure was fully accounted for by contingencies and made no allowance for retained earning capacity. On the findings and medical evidence accepted below, the opponent retained approximately 70 per cent work capacity, so the past economic loss award had to be reduced to $15,000. For costs, the defendant had initiated further litigation after the arbitration and ended worse off than if he had accepted the arbitrator's award, which constituted exceptional circumstances justifying a special order that the defendant pay the plaintiff's arbitration and District Court costs.

Court Disposition

Leave to appeal granted. Appeal allowed with costs. Orders made, including a special costs order.

Orders

  • ['Grant leave to appeal subject to the notice of appeal being filed within fourteen days.' 'Appeal allowed with costs.' 'Set aside the judgment entered in the District Court and substitute a judgment for $28,588.60 less than that judgment, with effect from 25 January 2002.' "The opponent to pay the claimant's costs...