Christopher Daly v Anne O'Connell [1999] NSWCA 177

Christopher Daly v Anne O'Connell [1999] NSWCA 177

The 30 per cent assessment for general damages was high but within the available range and was not wholly erroneous. However, the primary judge had found in the principal reasons that economic loss should be assessed on a residual earning capacity of three days per week, and later erred in treating that finding as a mistake for two days. The primary judge also erred in adopting Ex CC as the basis for calculating economic loss because it had not been established that it represented comparable earnings of a grade 1 clerk. The damages therefore had to be reassessed using the agreed figures flowing from a three-day residual capacity and the grade 1 clerk salary letter.

Jurisdiction
Australia
Judgment Date
04 June 1999
Procedural Posture
Appeal From District Court Assessment of Damages for Motor Accident Personal Injury / Court of Appeal Judgment
Outcome
Appeal allowed; District Court judgment for $325,112 set aside and judgment entered for $226,523 taking effect on 27 February 1998.
Legal Topics
['general Damages' 'non Economic Loss Under S 79 of the Motor Accidents Act' 'past Economic Loss' 'future Economic Loss' 'residual Earning Capacity' 'appellate Intervention in Damages Assessment' 'slip Rule' 'costs']
['torts' 'motor Accidents' 'damages' 'civil Procedure'] ['general Damages' 'non Economic Loss Under S 79 of the Motor Accidents Act' 'past Economic Loss' 'future Economic Loss' 'residual Earning Capacity' 'appellate Intervention in Damages Assessment' 'slip Rule' 'costs']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the award of general damages was manifestly excessive or not in accordance with s 79 of the Motor Accidents Act.' 'Whether the primary judge erred by calculating economic loss on the basis of a residual earning capacity of two days per week rather than three days per week.' 'Whether the primary judge erred by adopting Ex CC as the basis for calculating economic loss when it had not been shown to represent comparable earnings of a grade 1 clerk.']

Ratio Decidendi

The 30 per cent assessment for general damages was high but within the available range and was not wholly erroneous. However, the primary judge had found in the principal reasons that economic loss should be assessed on a residual earning capacity of three days per week, and later erred in treating that finding as a mistake for two days. The primary judge also erred in adopting Ex CC as the basis for calculating economic loss because it had not been established that it represented comparable earnings of a grade 1 clerk. The damages therefore had to be reassessed using the agreed figures flowing from a three-day residual capacity and the grade 1 clerk salary letter.

Court Disposition

Appeal allowed; District Court judgment for $325,112 set aside and judgment entered for $226,523 taking effect on 27 February 1998.

Orders

  • ['Appeal allowed.' 'The judgment for $325,112 is set aside.' 'In lieu thereof there is judgment for $226,523 taking effect on 27 February 1998.' "The respondent is to pay the appellant's costs of the appeal." 'The respondent is to have a certificate under the Suitors Fund Act if qualified.']