Judgment date: 17 May 2011. Nominal Defendant v Livaja [2011] NSWCA 121. Court of Appeal of New South Wales1

In Brief

  • 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 assessing damages.

Background

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 incorrect.

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 with.

Implications

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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