Hornsby Shire Council v Oberlechner [2017] NSWCA 205

Hornsby Shire Council v Oberlechner [2017] NSWCA 205

There was no appellable error in the primary judge's approximate assessment of past economic loss using male Average Weekly Earnings as a starting point, and no material error from not applying income tax because any tax effect was minimal in the context of an inherently imprecise assessment of loss of earning capacity. However, the primary judge erred by applying a one-third discount for employment available only eight months per year to past economic loss but not to future economic loss. Future economic loss was therefore reduced to two-thirds of the amount awarded. The respondent's grounds for increasing the award failed because there was ample evidence that he had no real possibility...

Jurisdiction
Australia
Judgment Date
16 August 2017
Procedural Posture
Appeal and Application for Leave to Cross Appeal Concerning Damages for Personal Injury / Court of Appeal From Supreme Court Common Law Decision [2017] NSWSC 23
Outcome
Appeal allowed in part in respect of ground 3(b) and otherwise dismissed; summons seeking leave to cross-appeal dismissed.
Legal Topics
['quantification of Past Economic Loss' 'quantification of Future Economic Loss' 'loss of Earning Capacity' 'average Weekly Earnings' 'income Tax in Damages Assessment' 'slip Rule' 'leave to Cross Appeal']
['personal Injury' 'damages' 'negligence' 'civil Procedure'] ['quantification of Past Economic Loss' 'quantification of Future Economic Loss' 'loss of Earning Capacity' 'average Weekly Earnings' 'income Tax in Damages Assessment' 'slip Rule' 'leave to Cross Appeal']

Case Brief

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Procedural Posture

Appeal and Application for Leave to Cross Appeal Concerning Damages for Personal Injury / Court of Appeal From Supreme Court Common Law Decision [2017] NSWSC 23

Legal Issues

  1. 1 ['Whether the primary judge erred in awarding any damages for past or future economic loss.' 'Whether male Average Weekly Earnings could be used as a starting point to assess loss of earning capacity for a self-employed gardening business.' 'Whether the assessment of past economic loss materially erred by failing to allow for income tax.' 'Whether the primary judge inconsistently failed to apply the one-third discount for working only eight months per year to future economic loss.' "Whether the primary judge failed to account for the respondent's reduced life expectancy from idiopathic pulmonary fibrosis." 'Whether the respondent should have leave to cross-appeal to have economic loss assessed by reference to prior IT industry earnings.']

Ratio Decidendi

There was no appellable error in the primary judge's approximate assessment of past economic loss using male Average Weekly Earnings as a starting point, and no material error from not applying income tax because any tax effect was minimal in the context of an inherently imprecise assessment of loss of earning capacity. However, the primary judge erred by applying a one-third discount for employment available only eight months per year to past economic loss but not to future economic loss. Future economic loss was therefore reduced to two-thirds of the amount awarded. The respondent's grounds for increasing the award failed because there was ample evidence that he had no real possibility...

Court Disposition

Appeal allowed in part in respect of ground 3(b) and otherwise dismissed; summons seeking leave to cross-appeal dismissed.

Orders

  • ['Appeal allowed in respect of ground 3(b), and otherwise dismissed.' 'Vary order 2 made on 6 February 2017 by deleting $380,640 and inserting in its place $347,945.' 'Dismiss the summons seeking leave to cross-appeal filed on 5 June 2017.' 'No order as to the costs of the appeal or the cross-appeal, on the basis...