Westfield Shoppingtown Liverpool v Jevtich [2008] NSWCA 139

Westfield Shoppingtown Liverpool v Jevtich [2008] NSWCA 139

The evidence from the respondent and his wife, including the diary and the fact that the wife had worked 70 hours per week before the accident, was sufficient to permit the primary judge to distinguish the additional need for attendant care services caused by the injury from the need caused by Parkinson's disease; expert evidence was not indispensable. The assessments of past and future attendant care services were open, and the 30 percent non-economic loss assessment was not shown to be wholly erroneous or plainly unjust. The appeal was therefore dismissed with costs.

Jurisdiction
Australia
Judgment Date
18 June 2008
Procedural Posture
Torts – Negligence – Damages / Appeal From the District Court Confined to the Assessment of Damages
Outcome
Appeal dismissed with costs
Legal Topics
['gratuitous Attendant Care Services' 'pre Existing Condition' 'civil Liability Act 2002 (nsw) S 15(2)' 'non Economic Loss' 'appellate Review of Damages Assessment']
['torts' 'negligence' 'damages'] ['gratuitous Attendant Care Services' 'pre Existing Condition' 'civil Liability Act 2002 (nsw) S 15(2)' 'non Economic Loss' 'appellate Review of Damages Assessment']

Case Brief

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Procedural Posture

Torts – Negligence – Damages / Appeal From the District Court Confined to the Assessment of Damages

Legal Issues

  1. 1 ["Whether the primary judge could award damages for gratuitous attendant care services under s 15(2) of the Civil Liability Act 2002 (NSW) where the respondent had a pre-existing Parkinson's disease condition and limited expert evidence distinguishing the sources of need." "Whether the primary judge's assessment of four hours per day for past gratuitous attendant care services and two hours per day for future services was open on the evidence." 'Whether the assessment of non-economic loss at 30 percent of a most extreme case was appellably erroneous.']

Ratio Decidendi

The evidence from the respondent and his wife, including the diary and the fact that the wife had worked 70 hours per week before the accident, was sufficient to permit the primary judge to distinguish the additional need for attendant care services caused by the injury from the need caused by Parkinson's disease; expert evidence was not indispensable. The assessments of past and future attendant care services were open, and the 30 percent non-economic loss assessment was not shown to be wholly erroneous or plainly unjust. The appeal was therefore dismissed with costs.

Court Disposition

Appeal dismissed with costs

Orders

  • ['Appeal dismissed with costs']