Arnott v Choy [2010] NSWCA 259

New South Wales Court of Appeal

CITATION: Arnott v Choy [2010] NSWCA 259

HEARING DATE(S): 22 April 2010

JUDGMENT DATE: 6 October 2010

JUDGMENT OF: McColl JA at 1; Basten JA at 210

DECISION: 1. Appeal allowed in part. 2. Set aside the verdict and judgment entered for the respondent in the amount of $2,154,131.60, being orders (a) and (c) made by Judge Levy on 4 March 2009. 3. Direct the parties to calculate the revised heads of damage in accordance with these reasons and file short minutes of order setting out the substituted judgment within seven days of these reasons. 4. (a) Appellant to file and serve written submissions limited to five pages in length concerning costs (in this Court and at trial) within seven days; (b) respondent to file and serve written submissions also limited to five pages in length concerning such costs within 14 days.

CATCHWORDS: DAMAGES – motor vehicle accident – past and future economic loss – diminution of earning capacity – whether finding that plaintiff had no residual earning capacity sustainable – whether finding open having regard to medical evidence - DAMAGES – excessive – attendant care – where evidence of some capacity for independent living – where damages awarded under separate heads encompassed same services/facilities - DAMAGES – mitigation – s 136, Motor Accidents Compensation Act 1999 (NSW) – whether "reasonable steps" taken to pursue "alternative employment opportunities" – where plaintiff failed to seek employment for two years prior to hearing of case

Civil Liability Legislation Amendment Act 2008 (NSW) Motor Accidents Act 1988 (NSW) LEGISLATION CITED: Motor Accidents Compensation Act 1999 (NSW) Motor Accidents Amendment Act 1995 (NSW) Workers Compensation Act 1987 (NSW)