Langdon v Carnival PLC

(2024) 115 NSWLR 78; [2024] NSWCA 168

NSW Court of Appeal

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Interrogate

Catchwords

1. Negligence
2. › Personal injury
3. › Causation
4. › Physical and psychological injuries
5. › Multiple possible causes of injury
6. › Whether incident on cruise ship caused aggravation of pre-existing degenerative condition
7. › Whether subsequent incident more likely cause
8. › Civil Liability Act 2002 (NSW), s 5D(1)
1. Appeal
2. › Appellate review of findings of fact
3. › Real review of evidence
4. › Weight to be given to lay witness evidence
5. › Whether observations of lay witnesses had probative force where multiple possible causes of injury
6. › Fox v Percy (2003) 214 CLR 118
1. Appeal
2. › Appellate intervention in assessment of damages
3. › Provisional assessment of non-economic loss
4. › Whether disproportion between injury and award so significant as to render award unreasonable
5. › Civil Liability Act 2002 (NSW), s 13(2)
1. Costs
2. › Indemnity costs
3. › Offers of compromise
4. › Presumptive entitlement under r 42.15A
5. › Discretion to order otherwise
6. › Whether reasonableness of non-acceptance determinative
7. › Whether circumstances out of the ordinary required for departure from presumptive position
8. › Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A

Quick Take

When assessing whether to depart from the presumptive entitlement to indemnity costs under r 42.15A UCPR, the question is not simply whether it was reasonable for the offeree not to accept the offer, but whether the circumstances of the case are sufficiently out of the ordinary to warrant departure from the presumptive position.