ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193 Hearing dates: 20 May 2014 Decision date: 16 June 2014 Before: Gleeson JA at [1]; Sackville AJA at [2]; McDougall J at [75] Decision: 1. Appeal allowed in part. 2. Cross-appeal dismissed. 3. Set aside Order 1 made by Mahony SC DCJ on 1 May 2013. 4. The parties file within seven days an agreed schedule of damages reflecting the reasons in this judgment. 5. In the absence of agreement, the appellant file and serve its proposed schedule of damages with brief written submissions in support within seven days. 6. The respondent file her proposed schedule of damages with brief written submissions in support, within a further seven days. 7. The respondent pay 50 per cent of the appellant's costs of the appeal. 8. The respondent/cross-appellant pay the appellant/cross-respondent's costs of the cross-appeal. [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: TORTS - mitigation of damages - whether plaintiff's refusal to undergo surgery was unreasonable - whether defendant discharged its burden of proof - whether the plaintiff's state of knowledge at the relevant time was taken into account