Smith v Alone [2017] NSWCA 287

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Smith v Alone [2017] NSWCA 287 Hearing dates: 27 July 2017 Decision date: 10 November 2017 Before: Macfarlan JA at [1]; Meagher JA at [80]; White JA at [81] Decision: (1) Direct the parties to attempt to agree upon a form of orders to give effect to these reasons for judgment.

(2) If the parties are unable to agree upon short minutes of order, and to lodge them with the Court within 14 days of this judgment, direct the appellant within a further 7 days to file and serve his proposed short minutes of order with supporting submissions. The respondent is directed to do likewise within a further 7 days and any reply by the appellant is to be filed within a further 7 days. Catchwords: NEGLIGENCE – damages – motor vehicle accident – whether primary judge erred in reducing appellant's damages on the basis that, after a period of treatment, he would have residual earning capacity – whether primary judge erred in discounting damages by 35% for vicissitudes on the basis of consequences of appellant's alcohol addiction – whether primary judge erred in declining to award damages for the cost of future commercial care where care currently provided for by family members Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), s 141B Cases Cited: Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kallouf v Middis [2008] NSWCA 61 Kwong v Abdulwahab [2016] Aust Torts Reports 82-268; NSWCA 107 Mead v Kerney [2012] NSWCA 215 Miller v Galderisi [2009] NSWCA 353 Nominal Defendant v Livaja [2011] NSWCA 121 South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 State of New South Wales v Maxwell [2007] NSWCA 53 Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293 Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore [2009] NSWCA 117 White v Benjamin (2015) 70 MVR 188; [2015] NSWCA 75 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53 Texts Cited: Harold Luntz, Assessment of Damages for Personal Injury and Death, (3rd ed 1990, Butterworths) Category: Principal judgment Parties: Jeffrey Warren Smith (Appellant) Sales Kupu Alone (Respondent) Representation: Counsel: R S McIlwaine SC / S E McCarthy (Appellant) R O'Keefe (Respondent)