Rta v Cremona [No 2]

[2001] NSWCA 459

NSW Court of Appeal

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Interrogate

Catchwords

1. Damages
2. › Assessment of damages
3. › Loss of dependency
4. › Future earning capacity of deceased
5. › Chance of abandoning bulk billing
6. › Whether allowance should be made for contingency
7. › Quantification of chance at approximately 17 per cent
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Offer of compromise
5. › Whether indemnity costs should be ordered for entire appeal where offer of compromise rejected and judgment exceeded offer
6. › Supreme Court Rules, Pt 52A r 22
1. Practice and Procedure
2. › Costs
3. › Appeal and cross-appeal
4. › Whether costs should follow overall success where appeal succeeded in part but cross-appeal succeeded substantially

Quick Take

Where a trial judge finds it 'likely' that a contingency would not have occurred but does not separately quantify the chance, an appellate court may assess the chance and make an appropriate adjustment to damages. A court has discretion to order indemnity costs for the entirety of an appeal where an earlier offer of compromise was rejected and the judgment substantially exceeds the offer, following Fotheringham v Fotheringham (No 2).