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Challenges to non-economic loss awards January 12, 2017


Clifton & Ors v Lewis [2012] NSWCA 229

  1. First, in relation to non-economic loss, there appears to be a tendency to challenge relatively minor variations in the proportion of a most extreme case, as assessed for the purposes of s 16 of the Civil Liability Act 2002 (NSW). Thus, in the present case, the challenge to the assessment made by the primary judge (33%) sought a reduction to 25%. The assessment involves a matter of “opinion, impression, speculation, and estimation”: Dell v Dalton (1991) 23 NSWLR 528 at 533G (Handley JA, Kirby P and Priestley JA agreeing) recently repeated in Jackson v Mazzafero [2012] NSWCA 170. Accepting that the assessment of the trial judge was generous, it would only be necessary to conclude that an appropriate assessment might have been 30%, plus or minus 5%, in order to say that both figures were within range and, accordingly, it would be inappropriate for the Court to interfere.

The assessment of non-economic loss is an evaluative assessment made by a trial judge: Dell v Dalton (1991) 23 NSWLR 528 at 533 – 534 per Handley JA.

Taupau v HVAC Constructions (Queensland) Pty Limited & Ors [2012] NSWCA 293

Non-economic loss

  1. Mr Taupau submitted that an appropriate assessment of non-economic was 33 per cent of the worst case, which would result in an award of $165,000. The reason for this percentage being proffered as the appropriate award for non-economic loss undoubtedly relates to the significant difference in the monetary award between an assessment of 33 per cent and any lower assessment. Basten JA commented upon this in Clifton v Lewis [2012] NSWCA 229 at [57]. Nonetheless, the Court is required to assess the matter having regard to all the facts. The assessment involves matters of “opinion, impression, speculation, and estimation“: see Dell v Dalton (1991) 23 NSWLR 528 at 533Jackson v Mazzafero [2012] NSWCA 170. In my opinion, an appropriate award would be 25 per cent of the worst case.

Sneddon v State of New South Wales (01 November 2012)[2012] NSWCA 351  (Basten JA at [2], Macfarlan JA at [118], Meagher JA at [179]) @ [109]

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