Hornsby Shire Council v Oberlechner [2017] NSWCA 205

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hornsby Shire Council v Oberlechner [2017] NSWCA 205 Hearing dates: 14 August 2017 Date of orders: 14 August 2017 Decision date: 16 August 2017 Before: Macfarlan JA at [1]; Gleeson JA at [1]; Leeming JA at [1] Decision: 1. Appeal allowed in respect of ground 3(b), and otherwise dismissed.

2. Vary order 2 made on 6 February 2017 by deleting $380,640 and inserting in its place $347,945.

3. Dismiss the summons seeking leave to cross-appeal filed on 5 June 2017.

4. No order as to the costs of the appeal or the cross-appeal, on the basis that the parties bear their own costs. Catchwords: DAMAGES – personal injury – quantification of past and future economic loss following injury – whether plaintiff had established an entitlement to any component of economic loss – whether error in using male Average Weekly Earnings as a starting point for past economic loss – whether material error in failing to allow for income tax – inconsistent approach applied for past and future economic loss – whether defendant should have approached trial judge to correct error – appeal allowed in part Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 43A, 45, 46 Uniform Civil Procedure Rules 2005, r 36.16 Cases Cited: Consolidated Lawyers Ltd v Abu-Mahmoud; Abu-Mahmoud v Consolidated Lawyers Ltd [2016] NSWCA 4 Graham v Baker (1961) 106 CLR 340 Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017] NSWCA 106 New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Turco v HP Mercantile Pty Ltd; Marinelli v HP Mercantile Pty Ltd; Turco v HP Mercantile Pty Ltd (No 2) [2009] NSWCA 209 Category: Principal judgment Parties: Hornsby Shire Council (Appellant; Respondent to cross-appeal) Alfred Oberlechner (Respondent; Applicant for leave to cross-appeal) Representation: Counsel: R Gambi, P Tliakos (Hornsby Shire Council)