Ms P v Mr D [2020] NSWSC 1210

Ms P v Mr D [2020] NSWSC 1210

The Court found that the omission to award pre-judgment interest on the damages for past loss of earning capacity was not a considered rejection but an omission capable of correction under UCPR r 36.16(1). Plaintiff was entitled to interest on such damages at an average rate of 7% over 12 years, and to indemnity costs from 12 December 2018.

Parties
Plaintiff: Ms P; Defendant: Mr D
Jurisdiction
Australia
Judgment Date
09 September 2020
Procedural Posture
Application to Vary Judgment / Post Judgment; Application to Vary/correct Orders
Outcome
Judgment of 16 March 2020 varied by increasing damages and making specific costs order.
Legal Topics
Amendment or Variation of Judgment, Pre Judgment Interest, Costs Orders
Tort Law Civil Procedure Amendment or Variation of Judgment Pre Judgment Interest Costs Orders

Case Brief

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Parties

Ms P

Plaintiff

Mr D

Defendant

Procedural Posture

Application to Vary Judgment / Post Judgment; Application to Vary/correct Orders

Legal Issues

  1. 1 Whether the judgment of 16 March 2020 should be varied to include pre-judgment interest on damages for past loss of earning capacity
  2. 2 Whether costs should be ordered on an indemnity basis from 12 December 2018
  3. 3 Whether Uniform Civil Procedure Rules 2005 (NSW) rr 36.16 or 36.17 provide the court with power to vary the judgment

Ratio Decidendi

The Court found that the omission to award pre-judgment interest on the damages for past loss of earning capacity was not a considered rejection but an omission capable of correction under UCPR r 36.16(1). Plaintiff was entitled to interest on such damages at an average rate of 7% over 12 years, and to indemnity costs from 12 December 2018.

Court Disposition

Judgment of 16 March 2020 varied by increasing damages and making specific costs order.

Orders

  • Defendant to pay plaintiff's costs assessed on the ordinary basis until 12 December 2018, and thereafter on the indemnity basis.
  • Judgment sum amended from $853,550 to $979,550.