Clifton & Ors v Lewis [2012] NSWCA 229

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Clifton & Ors v Lewis [2012] NSWCA 229 Hearing dates: 21 June 2012 Decision date: 30 July 2012 Before: Beazley JA at [1]; Basten JA at [55] Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: DAMAGES - Torts - Negligence - Personal injury - Non-economic loss - Trial judge assessed non-economic loss at 33 per cent of a most extreme case - Whether trial judge erred in assessment - Award of non-economic loss is an evaluative judgment - Trial judge did not take into account irrelevant considerations or wrongly assess medical evidence - No error in exercise of trial judge's discretion - Appeal dismissed.

DAMAGES - Torts - Negligence - Personal injury - Future economic loss - Onus on plaintiff to prove impact of injury on future earning capacity - Whether trial judge erred in assessment of future economic loss when plaintiff did not plead or particularise claim for loss based on advancement to operations supervisor - Case expanded at trial beyond that particularised - Trial judge was entitled on the evidence to assess plaintiff as person who would have advanced to Operations Manager position.

DAMAGES - Torts - Negligence - Personal injury - Future economic loss - Assessment of damages for future economic loss by way of buffer - Whether trial judge erred in assessment of buffer - Whether medical evidence must expressly state that earning capacity impaired - Evidence required to support finding that earning capacity impaired - Such finding to be made on all of the relevant evidence - No necessity for medical evidence to expressly state earning capacity impaired - Medical evidence consistent with plaintiff's evidence of extent of work incapacity - Trial judge did not err in assessment of buffer - Civil Liability Act 2002, s 13. Legislation Cited: Civil Liability Act 2002 Cases Cited: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 Dell v Dalton (1991) 23 NSWLR 528 Fegan (by her tutor Rozenauers) v Lane Cove House Pty Limited [2007] NSWCA 88 Graham v Baker [1961] HCA 48; 106 CLR 340 Jackson v Mazzafero [2012] NSWCA 170 Khan v Polyzois [2006] NSWCA 59 K-Mart Australia Ltd v McCann [2004] NSWCA 283 McCracken v Melbourne Storm Rugby League Football Club Limited & 2 Ors [2007] NSWCA 353 Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1 Penrith City Council v Parks [2004] NSWCA 2001 State of New South Wales v Zerafa [2005] NSWCA 187 State of NSW v Moss [2000] NSWCA 133; 54 NSWLR 536 Zorom Enterprises Pty Ltd v Zabow and Ors [2007] NSWCA 106 Category: Principal judgment Parties: Alan Grant Clifton (First Appellant) Charlene Myree Usher (Second Appellant) Mathea Anne Usher (Third Appellant) Trent Andrew Usher (Fourth Appellant) Luke Anthony Usher (Fifth Appellant) Paul Christopher MacGregor (Sixth Appellant) Rodney James Ross (Seventh Appellant) Nicole Joanne Ross (Eighth Appellant) Jason Michael Lewis (Respondent) Representation: Counsel: R Cavanagh SC; D Morgan (Appellants) T Boyd; J Cairn (Respondent) Solicitors: Boyd House & Partners (Appellants) Herbert Weller (Respondent) File Number(s): 2008/318704 Publication restriction: No Decision under appeal Citation: Lewis v Clifton & Ors [2011] NSWDC 79 Date of Decision: 2011-07-29 00:00:00 Before: Elkaim DCJ File Number(s): 2008/318704