Dal v Chol [2018] NSWCA 219

Dal v Chol [2018] NSWCA 219

The appellant did not establish that the primary judge misunderstood the circumstances of the accident. It was open to the primary judge to prefer the respondent's medical evidence and find that the collision caused or aggravated a lumbar spine injury and consequent psychological injury affecting the respondent's ability to work as before. The appellant did not discharge the evidentiary burden of proving that the second accident or available alternative employment reduced the damages otherwise recoverable. The award of $95,000 for future economic loss was not excessive, but the past economic loss calculation contained an apparent arithmetic error because it used 144 weeks instead of 121...

Jurisdiction
Australia
Judgment Date
02 October 2018
Procedural Posture
Negligence Appeal Concerning Assessment of Damages for Personal Injuries Sustained in a Motor Vehicle Accident / Appeal From District Court of New South Wales Judgment on Damages
Outcome
Appeal allowed in part.
Legal Topics
['assessment of Damages' 'past Economic Loss' 'future Economic Loss' 'causation of Lumbar Spine Injury' 'psychological Injury' 'residual Earning Capacity' 'evidentiary Burden' 'buffer for Future Economic Loss']
['negligence' 'personal Injury' 'damages' 'motor Accidents' 'civil Procedure'] ['assessment of Damages' 'past Economic Loss' 'future Economic Loss' 'causation of Lumbar Spine Injury' 'psychological Injury' 'residual Earning Capacity' 'evidentiary Burden' 'buffer for Future Economic Loss']

Case Brief

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Procedural Posture

Negligence Appeal Concerning Assessment of Damages for Personal Injuries Sustained in a Motor Vehicle Accident / Appeal From District Court of New South Wales Judgment on Damages

Legal Issues

  1. 1 ['Whether the primary judge misapprehended the circumstances of the motor vehicle accident.' 'Whether any misapprehension led to an erroneous finding that the respondent sustained or aggravated a lumbar spine injury in the accident and that his depressive illness was attributable to that injury.' "Whether the primary judge erred in assessing damages by overlooking the respondent's post-accident work history and failing to take account of a second motor vehicle accident affecting work capacity." 'Whether the award for past economic loss should be reduced because the schedule of damages used 144 weeks rather than 121 weeks.']

Ratio Decidendi

The appellant did not establish that the primary judge misunderstood the circumstances of the accident. It was open to the primary judge to prefer the respondent's medical evidence and find that the collision caused or aggravated a lumbar spine injury and consequent psychological injury affecting the respondent's ability to work as before. The appellant did not discharge the evidentiary burden of proving that the second accident or available alternative employment reduced the damages otherwise recoverable. The award of $95,000 for future economic loss was not excessive, but the past economic loss calculation contained an apparent arithmetic error because it used 144 weeks instead of 121...

Court Disposition

Appeal allowed in part.

Orders

  • ['Appeal allowed in part.' 'Set aside the judgment for $165,283.40 entered on 30 October 2017.' 'In lieu thereof enter judgment for the respondent in the sum of $159,924.40.' 'Give liberty to the respondent to apply by notice of motion within 14 days to vary order (3) if he wishes to contend that the award for past...