Judgment date: 17 May 2011. Nominal Defendant v Livaja
 NSWCA 121. Court of Appeal of New South
A judgment has not been entered until it is recorded on the
Court's electronic system.
Parties may apply to alter a judgment if there is some obvious
error or misapprehension in law or fact.
A judge cannot take an Offer of Compromise into account when
The claimant was injured in an accident on 7 October 2006
involving an unidentified vehicle. He brought proceedings against
the Nominal Defendant and was successful on the issue of liability.
The trial judge initially awarded damages in an amount of $244,973
plus costs which included $100,000 in relation to future economic
loss. When the Nominal Defendant presented an Offer of Compromise
in the sum of $265,000 plus costs and sought indemnity costs, the
trial judge advised that he had made a miscalculation in his award.
He recalculated damages at $368,405 plus costs, which included
$189,000 in relation to future economic loss.
The claimant had suffered injuries in an earlier accident in
2003. The trial judge accepted that prior to the 2003 accident the
claimant had an earning capacity of $1,000 net per week, following
the 2003 accident but before the 2006 accident he had an earning
capacity of $400 net per week and he was totally incapacitated for
work after the 2006 accident. The trial judge initially assessed
future economic loss by apportioning a loss of $400 net per week
equally between the 2003 and 2006 accidents. When he recalculated
the award for future economic loss he attributed the whole $400 net
per week loss to the 2006 accident.
The Nominal Defendant appealed the decision on the basis that
the judgment for the smaller verdict had already been entered, that
the trial judge took the Offer of Compromise into account when
recalculating damages, and that the decision was ultimately
Court of Appeal
The Court of Appeal noted that in accordance with rule 36.11(2)
of the Uniform Civil Procedure Rules 2005 in a court with
a computerised court record system, absent an order otherwise, the
judgment or order is taken to be entered when it is recorded in
that system. There was no evidence that the initial verdict had
been entered into the system and so the Court did not find that the
judgment had yet been made.
The Court of Appeal declined to infer that the trial judge took
the Offer of Compromise into consideration when recalculating
damages, but it agreed that it would be inappropriate to do so. The
mere timing of the trial judge's recalculation and his
ambiguous comments before making his recalculation were not
adequate for such inference to be drawn, especially since the
judgment was handed down orally.
The Court of Appeal rejected the argument that the award of
damages for future economic loss had been recalculated erroneously.
In fact, the Court found that the later approach was consistent
with s 126 of the Motor Accidents Compensation Act 1999
whereas the earlier approach double counted the effects of the 2003
accident. The Court also found no error in the trial judge's
reliance on tax invoices issued by the claimant rather than his
income tax returns, as these adequately reflected his earning
potential prior to the accident. Finally, the Court found that the
trial judge did not err in finding that the claimant had no
residual earning capacity given that the contrary view was only
supported in limited evidence which the trial judge had dealt
This judgment confirms that parties may have an opportunity to
correct an error or misapprehension before, or even after, a
judgment has been entered. A party which is alert to this
opportunity may save the expenses of an appeal if submissions are
made in a timely manner.
This judgment neatly summarises the relevant considerations that
must be taken into account when calculating future economic loss
(see paragraphs 38 to 42). Readers are encouraged to refer to this
section of the judgment for a simplified overview of the assessment
process for future economic loss.
1. Basten JA, Campbell JA and Rothman J
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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