KEMP v ALWAY [2003] NSWCA 123

KEMP v ALWAY [2003] NSWCA 123

The appeal was allowed and the judgment was varied because the award for future economic loss did not meet the statutory threshold of likelihood under s70A of the Motor Accidents Act 1988, with evidence being insufficient to sustain a properly based cushion or buffer award. Assessment of non-economic loss and future...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
07 May 2003
Procedural Posture
Appeal / Judgment
Outcome
appeal allowed
Legal Topics
['damages' 'non Economic Loss' 'future Economic Loss' 'future Out of Pocket Expenses' 'assessment of Impairment']
['motor Vehicle Accident' 'personal Injury'] ['damages' 'non Economic Loss' 'future Economic Loss' 'future Out of Pocket Expenses' 'assessment of Impairment']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether the assessment of impairment at 30% of a most severe case for non-economic loss was outside the bounds of sound discretionary judgment' 'Whether the award for future out-of-pocket expenses was too generous' 'Whether the cushion award for future economic loss met the statutory threshold in s70A Motor Accidents Act 1988 and was supported by evidence']

Ratio Decidendi

The appeal was allowed and the judgment was varied because the award for future economic loss did not meet the statutory threshold of likelihood under s70A of the Motor Accidents Act 1988, with evidence being insufficient to sustain a properly based cushion or buffer award. Assessment of non-economic loss and future out-of-pocket expenses was within discretion and not outside the appropriate range.

Court Disposition

appeal allowed

Orders

  • ['Leave to appeal granted subject to filing draft notice of appeal within 14 days' 'Appeal upheld' 'Judgment varied by reducing verdict from $129,287.35 to $94,287.35' 'Costs of appeal awarded to appellant' 'Respondent granted a certificate under the Suitors Fund Act if entitled']