Smith v Alone [2017] NSWCA 287

Smith v Alone [2017] NSWCA 287

The primary judge erred in finding residual earning capacity because the accepted orthopaedic evidence did not support the jobs postulated as suitable, the respondent did not discharge the evidentiary burden of showing work open to a person with the appellant's true capacity, and there was no expert evidence...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
10 November 2017
Procedural Posture
Negligence Damages Claim Arising From a Motor Vehicle Accident / Appeal From District Court Assessment of Damages
Outcome
Appeal allowed; parties directed to attempt to agree orders giving effect to the reasons.
Legal Topics
['future Economic Loss' 'residual Earning Capacity' 'vicissitudes' 'contributory Negligence' 'future Domestic Care and Assistance' 'commercial Care' 'gratuitous Care Threshold']
['negligence' 'motor Accidents' 'damages'] ['future Economic Loss' 'residual Earning Capacity' 'vicissitudes' 'contributory Negligence' 'future Domestic Care and Assistance' 'commercial Care' 'gratuitous Care Threshold']

Source-derived case record

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Procedural Posture

Negligence Damages Claim Arising From a Motor Vehicle Accident / Appeal From District Court Assessment of Damages

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that, after a two year period for pain management and substance abuse withdrawal treatment, the appellant would have residual earning capacity.' "Whether the primary judge erred in discounting damages for future economic loss by 35% for vicissitudes due to the appellant's alcohol addiction and related criminality." 'Whether the primary judge erred in declining to award damages for the cost of future commercial care and assistance.']

Ratio Decidendi

The primary judge erred in finding residual earning capacity because the accepted orthopaedic evidence did not support the jobs postulated as suitable, the respondent did not discharge the evidentiary burden of showing work open to a person with the appellant's true capacity, and there was no expert evidence justifying an assumption that pain management and Oxycontin withdrawal treatment would be effective within two years. The 35% vicissitudes discount was unreasonable and involved an element of double counting because reduced pre-accident earnings had already reflected alcohol-related unemployment and criminality; a 25% discount was appropriate. The appellant established a need for...

Court Disposition

Appeal allowed; parties directed to attempt to agree orders giving effect to the reasons.

Orders

  • ['Direct the parties to attempt to agree upon a form of orders to give effect to these reasons for judgment.' 'If the parties are unable to agree upon short minutes of order, and to lodge them with the Court within 14 days of this judgment, direct the appellant within a further 7 days to file and serve his proposed...