Smith v Zhong

[2015] WASCA 202

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Damages
2. › Personal injury
3. › Loss of earning capacity
4. › Assessment where plaintiff carries on business in partnership
5. › Whether full cost of substitute labour represents plaintiff's loss
6. › Distinction between cases where plaintiff's exertions are primary source of partnership income and cases where they are not
7. › Husher v Husher [1999] HCA 47 applied
1. Damages
2. › Personal injury
3. › Loss of earning capacity
4. › Past and future economic loss
5. › Use of substitute labour cost as guide to assessment
6. › Applicable principles
7. › Whether approach in [name withheld] v [name withheld] extends to past economic loss
1. Damages
2. › Personal injury
3. › Non-pecuniary loss
4. › Statutory cap
5. › Assessment as proportion of most extreme case
6. › Whether 30% within sound discretionary range
7. › Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C
1. Appeal
2. › Standard of appellate review
3. › Assessment of damages
4. › Whether total award outside limits of sound discretionary judgment
5. › Whether error in one component warrants interference where total award within range

Quick Take

The [name withheld] v [name withheld] approach to assessing lost earning capacity by reference to the full cost of substitute labour or the whole of partnership income applies only where the plaintiff's personal exertions are effectively the primary source of the partnership's income, the partnership is terminable at will, and the plaintiff has effective control over the deployment of earning capacity. Where the plaintiff's contribution is primarily to the expenditure side of the business (e.g., administrative tasks) and another partner is the primary income generator, the appropriate measure is the plaintiff's share of the cost of replacement labour. An error in one component of a damages assessment (here, non-pecuniary loss assessed at 30% rather than 25%) does not warrant appellate interference where the total award remains within the limits of a sound discretionary judgment.