TOMES v. ADAMS [2003] NSWCA 269

New South Wales Court of Appeal

CITATION : TOMES v. ADAMS [2003] NSWCA 269 HEARING DATE(S) : 06/08/03 JUDGMENT DATE : 22 September 2003

JUDGMENT OF : Beazley JA at 1; Santow JA at 39 DECISION : 1. Allow the appeal; 2. Set aside the verdict and judgment of the trial judge; 3. Order that there be a verdict for the respondent in a sum to be assessed in accordance with these reasons; 4. Liberty to apply on 2 days notice in respect of the appropriate rate of taxation to apply to the nett earnings figure in relation to economic loss; 5. The respondent is to pay the appellant's costs of the appeal and is to have a certificate under the Suitors Fund Act 1951 if so entitled; 6. The parties are to bring in Short Minutes of Order within 7 days of today's date to accord with these reasons

CATCHWORDS : Assessment of Damages - effect of pre-existing injury - extent of injury suffered in accident - economic loss - out of pocket expenses - vicissitudes - non-economic loss - applicable tax rate to be applied to economic loss CASES CITED : Devries v Australian National Railways Commission (1993) 177 CLR 472 Abalos v Australian Postal Commission (1990) 171 CLR 167 PARTIES : Eric Tomes (Appellant) Ian Robert Adams (Respondent FILE NUMBER(S) : CA 41027/02 COUNSEL : J.D. Hislop QC/J. Watts (Appellant) D.J. Russell SC/A. Porthouse (Respondent) SOLICITORS : Turner Whelan (Appellant) Herbert Weller (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT DC 1620/01 FILE NUMBER(S) : LOWER COURT Chesterman ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41027/02 DC 1620/01