Norris v Routley; Routley v Norris [2016] NSWCA 367

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Norris v Routley; Routley v Norris [2016] NSWCA 367 Hearing dates: 6 September 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Before: McColl JA at [1]; Gleeson JA at [2]; Payne JA at [13] Decision: (1) Dismiss the appellant's motion dated 3 May 2016 to lead further evidence with costs.

(2) Dismiss the appeal.

(3) Appellant to pay the costs of the respondent to the appeal as agreed or assessed.

(4) Application for leave to cross-appeal refused.

(5) Respondent to pay the appellant's costs of application for leave to cross-appeal as agreed or assessed. Catchwords: DAMAGES - Compensation to Relatives Act 1897 (NSW) s 4 - appellant wife of deceased - respondent doctor of deceased - respondent admitted liability in respect of deceased's death - quantification of damages - quantification of deceased's consumption of household income - application of Luntz standard consumption percentages - evidence that deceased had frugal consumption habits - evidence that household income would increase - Luntz percentages adopted by expert witnesses - discretionary judgment - whether actual error demonstrated

DAMAGES - Compensation to Relatives Act 1897 (NSW) s 4 - quantification of damages - value of deceased's domestic services - quantification of domestic services after sons ceased to be dependent - whether to discount the value of domestic services performed by deceased to reflect the fact that some such services were performed for his own benefit - whether actual error demonstrated

EVIDENCE - Supreme Court Act 1970 (NSW) s 75A - further evidence on appeal - special grounds - appellant sought to tender evidence of revised consumption percentages based on data more recent than that used by Prof Luntz - evidence that Prof Luntz intended to include revised percentages in new edition of book - whether evidence could have been obtained at trial with reasonable diligence - whether prejudice would be caused by admission of evidence Legislation Cited: Civil Procedure Act 2005 (NSW) s 56 Compensation to Relatives Act 1897 (NSW) s 4 Supreme Court Act 1970 (NSW) ss 75A, 101 Uniform Civil Procedure Rules 2005 (NSW) r 51.53 Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 Axiak v Pezzano [2002] NSWCA 65 Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 De Sales v Ingrilli (2002) 212 CLR 338; [2002] HCA 52 House v The King (1936) 55 CLR 499 Lawrence v Gunner (No 3) [2016] NSWCA 18 Nguyen v Nguyen (1990) 169 CLR 245 Norbis v Norbis (1986) 161 CLR 513 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Taylor v Walker [2016] NSWCA 100 Tjiong v Tjiong [2012] NSWCA 201 Wiki v Atlantis Relocations (NSW) Pty Limited (2004) 60 NSWLR 127; [2004] NSWCA 174 Texts Cited: Prof Harold Luntz, Assessment of Damages for Personal Injury and Death (4th ed, LexisNexis Butterworths, 2002) Category: Principal judgment Parties: Mary Norris (appellant / cross-respondent) Douglas Routley (respondent / cross-appellant) Representation: Counsel: D R J Toomey SC / S J Holmes (appellant / cross-respondent) J K Kirk SC / Z Heger (respondent / cross-appellant)