TOMES v. ADAMS [2003] NSWCA 269

Procedural Posture

Motor Vehicle Accident Personal Injury Damages Appeal / Appeal From District Court Assessment of Damages

Legal Issues

1. 1 ['Whether the respondent suffered injury in the motor vehicle accident and any ongoing disability as a consequence of it.' "Whether the trial judge erred in attributing all of the respondent's ongoing pain and disability to the motor vehicle accident rather than to a pre-existing back condition and tyre changing incident." 'Whether the damages for economic loss, out of pocket expenses and non-economic loss should be reassessed.' 'Whether the appropriate tax rate applied to economic loss was 43% rather than 20%.']

Ratio Decidendi

The trial judge was entitled to find that the respondent suffered injury in the motor vehicle accident, but erred in attributing all ongoing disability to that accident because the medical evidence did not support that finding. Damages therefore had to be reassessed by applying a 50% discount for vicissitudes to economic loss and out of pocket expenditure, assessing non-economic loss at 23% of a most extreme case, and calculating economic loss using the appropriate tax rate, identified as 43% subject to liberty to apply.

Court Disposition

Appeal allowed; verdict and judgment of the trial judge set aside; verdict for the respondent in a sum to be assessed in accordance with the reasons.

Orders

• ['Allow the appeal.' 'Set aside the verdict and judgment of the trial judge.' 'Order that there be a verdict for the respondent in a sum to be assessed in accordance with these reasons.' 'Liberty to apply on 2 days notice in respect of the appropriate rate of taxation to apply to the nett earnings figure in relation...