The Nominal Defendant v Aychahawchar [2015] NSWCA 58

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Nominal Defendant v Aychahawchar [2015] NSWCA 58 Hearing dates: 27 February 2015 Decision date: 19 March 2015 Before: Basten JA at [1]; Gleeson JA at [11]; Adamson J at [12] Decision: (1)Appeal allowed.

(2)Set aside the judgment ordered by the District Court on 15 May 2014.

(3)In lieu of the judgment of the District Court, order judgment for the respondent in the sum of $303,850, such judgment to take effect from 15 May 2014.

(4)Unless an application is made in writing to the Presiding Judge's Associate within seven days for a different order, order the respondent to pay 90% of the appellant's costs of the appeal. Catchwords: DAMAGES – challenge to awards for non-economic loss and past and future economic loss – alleged failure to mitigate loss - whether failure reflected in award –effect of s 136 of Motor Accidents Compensation Act 1999 (NSW) on award of damages – relationship between ss 126 and 136

STATUTORY INTERPRETATION - Motor Accidents Compensation Act 1999 (NSW), 136 – burden of proving failure to mitigate loss – evidence required to discharge burden - whether burden of proving failure to mitigate loss requires proof of what earnings would have been if loss had been mitigated Legislation Cited: Civil Liability Act 2002 (NSW) Motor Accidents Act 1988 (NSW), ss 39(2), 39(1A) Motor Accidents Compensation Act 1999 (NSW), ss 126, 131, 134,136 Cases Cited: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 Graham v Baker [1961] HCA 48; 106 CLR 340 Husher v Husher [1999] HCA 47; 197 CLR 138 Linsell v Robson [1976] 1 NSWLR 249 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Moran v McMahon (1985) 3 NSWLR 700 Texts Cited: H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002, LexisNexis) Category: Principal judgment Parties: The Nominal Defendant (Appellant) Khaled Aychahawchar (Respondent) Representation: Counsel: P Deakin QC / S Torrington (Appellant) B Dooley SC / R Di Michiel (Respondent)