Norris v Routley; Routley v Norris [2016] NSWCA 367

Background Facts

The appellant sued the respondent following the death of the appellant’s husband (the deceased) pursuant to the Compensation to Relatives Act 1897 (NSW). The respondent treated the deceased, who suffered from liver disease, and negligently failed to refer him for a liver transplant, or to arrange a liver transplant in a timely manner. Liability was admitted and the matter proceeded on quantum only. The primary judge awarded $21,757 in damages.

The appellant lodged an appeal challenging the calculation of damages and the personal consumption figures used by the primary judge. The appellant also sought to rely on further evidence under Section 75A(8) of the Supreme Court Act 1970 (NSW).

The respondent sought leave to cross-appeal, challenging the hours of domestic services the deceased would have provided to his family.

Legal Issues

Both parties had tendered evidence before the primary judge concerning the appellant’s entitlement to damages due to the loss of dependency. Expert reports had been obtained commenting on consumption percentages pertaining to the deceased’s home duties and anticipated return to the workforce. The reports relied upon Table 9.1 of “Assessment of Damages for Personal Injury and Death”, (4th Edition, Lexis Nexis Butterworths, 2002), prepared by Professor Luntz (the Luntz table).

The appellant submitted that the percentages derived from the Luntz table failed to take into account the deceased’s frugal habits, and that the primary judge erred by applying the consumption rates contrary to evidence. It was submitted that the Luntz table overestimated consumption rates and dependency percentages by omitting an allowance for household savings.

The appellant also sought to tender further evidence, pursuant to Section 75A(8) of the Supreme Court Act 1970 (NSW), including affidavits of chartered accountants commenting on the Luntz table. Section 75 States:

(7) The Court may receive further evidence.

(8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds. (emphasis added)

(9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.”

The affidavits provided alternate calculations based on the deceased’s personal consumption, and, if applied to the primary judge’s findings, would have significantly increased damages to $721,483.

The Court noted at paragraph 32 that, although the categories are not closed, three elements must be satisfied in order to meet the “special grounds” test - Lawrence v Gunner (No 3) [2016] NSWCA 18 at [24] per Gleeson JA; Akins v National Australia Bank (1994) 34 NSWLR 155 at 160; and Tjiong v Tjiong [2012] NSWCA 201 at [166]:

  1. The evidence could not have been obtained with reasonable diligence for use at the trial;
  2. The evidence must be such that there must be a high degree of probability that there would be a different verdict; and
  3. The evidence must be credible.

Decision

His Honour Payne JA (with whom McColl and Gleeson JA agreed), dismissed the appeal. No error was shown with respect to the primary judge’s assessment of damages. The findings about the determination of an appropriate consumption rate concerned a discretionary judgment based on the evidence available which included the expert evidence from both parties that had applied the Luntz table – see paragraphs [62] to [64]. The Court noted the lack of evidence concerning the deceased’s actual spending habits and frugality. There was also no evidence concerning unspent income or savings which may have altered the damages.

With respect to the new evidence, the Court held: “Whilst the further evidence here in issue is undoubtedly credible and probative, the appellant did not establish that the evidence could not have been discovered without reasonable diligence” [41]. This was because the evidence concerning the consumption rates had been published prior to the trial and was widely available to the legal community.

Payne JA also considered that the evidence was “further” rather than “fresh”, and did not contain evidence of matters occurring after the trial. To have allowed the further evidence would permit the appearance of a second chance at adducing new evidence, which would prejudice the respondent. In addition, even had the respondent had an opportunity to respond to the new evidence, it would be contrary to Section 56 of the Civil Procedure Act 2005 (NSW) and the just, quick and cheap resolution of matters [40].

Leave was refused with respect to the cross-appeal. Again, there was no error demonstrated by the primary judge’s reasoning in relation to the care provided by the deceased.

Application

Practitioners must ensure that appropriate calculations are used in compensation to relatives claims. Specific details of a deceased’s lifestyle are necessary to assist the Court in determining appropriate financial dependency rates. As seen from above, the figures can vary significantly i.e. $721,483 compared to $21,757.

For further reading on the issue of adjusting the Luntz Table consumption rates see the Vincents Chartered Accountants “Personal Consumption Percentages in Australia – Current tables for 2015” authored by Michael Lee and Julia Bossert. It is anticipated that a 5th Edition of “Assessment of Damages for Personal Injury and Death” will be published in October 2017 which will incorporate these tables.

This matter also reinforces the importance of Offers of Compromise. The plaintiff, whilst awarded Judgment in her favour, refused to accept an Offer of Compromise of $100,000 plus costs. In addition to the unsuccessful appeal, the appellant will owe a significant debt to the respondent.