LEWIS v. KENAIR SEAPLANES P/L [2004] NSWCA 416

New South Wales Court of Appeal

CITATION : LEWIS v. KENAIR SEAPLANES P/L [2004] NSWCA 416 HEARING DATE(S) : 12/11/2004 JUDGMENT DATE : 12 November 2004

JUDGMENT OF : Giles JA at 1; Bryson JA at 2 DECISION : Ordinary Summons (for Leave to Appeal) dismissed; Refuse extension of time to apply for leave to cross-appeal

CATCHWORDS : DAMAGES - personal injury - assessment - claimant (plaintiff) sought leave to appeal to raise claim for additional $50,906 damages where $272,713 awarded: no showing of reasonable prospects of appellate intrevention - Leave refused - ND CASES CITED : Diamond v Simpson (No 1)[2003] NSWCA 67 Moran v McMahon (1985) 3 NSWLR 700 PARTIES : Colin Owen Lewis - Claimant Kenair Seaplanes Pty Ltd - Opponent FILE NUMBER(S) : CA 40542/2004 COUNSEL : P. Neil SC & S. Galitsky - Claimant J. L. Sharpe - Opponent SOLICITORS : Haylen McKenzie - Claimant Ebsworth & Ebsworth - Opponent

LOWER COURT District Court JURISDICTION : LOWER COURT DC 4025/2000 FILE NUMBER(S) : LOWER COURT MURRELL DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40542/2004

GILES JA BRYSON JA

FRIDAY 12 NOVEMBER 2004 COLIN OWEN LEWIS v KENAIR SEAPLANES PROPRIETARY LIMITED Judgment 1 GILES JA: I agree with Bryson JA. 2 BRYSON JA: The claimant, the plaintiff in the District Court, applies for leave to appeal from the assessment of damages made by her Honour Judge Murrell S.C. in reasons published on 12 March 2004 which led to the judgment of the District Court of 19 March 2004 in favour of the claimant for $272,713.00. 3 The table accompanying the claimant's summary of argument sets out several respects in which the assessment of damages is challenged in amounts totalling $50,906.00. The first challenge is to part of the assessment of past economic loss which her Honour treated as $34,875.00: it is contended that this should be increased by $1,005.00. The second is to her Honour's assessment of future economic loss for which her Honour awarded $75,778.00: the contention is that this should be increased by $42,979.00. The third relates to past superannuation for which her Honour ordered $1,200.00: the claimant wishes to contend for an increase of $2,256.00. The fourth relates to future superannuation for which her Honour awarded $7,729.00: the claimant wishes to contend for an increase of $4,383.00. The fifth and last relates to interest on past economic loss for which her Honour awarded $9,835.00 and the claimant wishes to contend for an increase of $283.00. 4 The second, third and fourth items depend completely, and the others to some extent, on what is contended to be an error in her Honour's assessment of damages for future economic loss. The essence of the contention is that the trial judge's findings, as expressed, did not support the assessment of damages for future economic loss which she made. It appears fairly clearly from her Honour's expression that she adopted as the basis of that assessment the average earnings over the four complete financial years prior to the trial, being the years with which the expert accountancy reports produced on each side dealt. There was little difference between the position reported by the accountants except in a respect which is no longer contentious. Their analysis of income over those four years showed a fairly constant decline with the exception of an anomalous result in one year, referred to as "a spike", the anomaly being explained by reference to a sale of a business which took place in that year. It was submitted by Senior Counsel for the claimant to the effect that there was an error of principle, and that in principle the assessment of damages for future economic loss should have been based on the earnings level of the last of those four years; that taking the average over the four years was an error and that the start point for the future should have been the bottom of the decline, not the mid-point or average. An effect of this contention is that it should have been found that the applicant reached a plateau of earning capacity at the bottom and that there was no warrant in the facts as they were found to transpose the average figure for the whole of the four years into the assessment for future economic loss. 5 The opponent's answer was to the effect that the basis adopted was based on medical evidence that the post-traumatic stress disorder affecting earning capacity was likely to improve to some extent following the conclusion of the litigation, and that the trial judge must be taken to have found that in making an assessment relating to an essentially unforeseeable future the average was an appropriate measure for loss of earning capacity. 6 In my view the trial judge was dealing with a subject upon which altogether satisfactory measures of what the future holds are not available, and Courts are under the constraint that a conclusion must be reached as well as maybe reached in the absence of any entirely satisfactory basis. 7 The Court of Appeal would approach any appeal for which leave were granted consistently with the principle usually adopted in appeals from what are essentially discretionary decisions in areas where the true position is imponderable. I refer to the exposition of the task of an appellate court in determining an appeal from an assessment of damages and personal injuries made in Diamond v Simpson (No 1)[2003] NSWCA 67 reported (2003) Aust Torts Reports 81-695, particularly at para 15 of the joint judgment where their Honours refer to Moran v McMahon (1985) 3 NSWLR 700 with further references. 8 It is plain notwithstanding the lack of a completely explicit exposition that the trial judge chose the average as the basis for her assessment. I do not think that there are real prospects of its being shown on appeal that her choice of an average was outside the area of assessment available to her, or that there could be shown to be any proper basis for an appellate intervention. In my opinion therefore leave to appeal should not be granted. 9 Extension of time to apply for leave to appeal was not opposed and should be granted, as a reasonable explanation was offered for the delay which occurred. However in my opinion the Ordinary Summons should be dismissed. 10 It was plain from the submissions made by counsel for the opponent that the opponent's application for leave to appeal, which also has encountered a difficulty of being filed late and would require an extension of time, was defensive only. Counsel showed no wish to rely on any cross-appeal except in the event that the claimant obtained leave to appeal and brought an appeal. In my opinion the appropriate order is to refuse the application for extension of time to apply for leave to cross-appeal. 11 With respect to costs my present disposition is towards ordering that each party pay its own costs of each of the applications which have been brought today, but I do not speak finally and would propose that the parties be given an opportunity to make submissions on that matter. **********