RASMUS and ANOR v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1992] NSWCA 201

RASMUS and ANOR v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, PRIESTLEY JA and SAMUELS AJA 6 May 1992, 22 December 1992

[1992] NSWCA 201

APPEALS ON QUANTUM — injury in road accident — defendant admits liability to two plaintiffs — one plaintiff (a company) dependent upon other plaintiff for its income — by agreement at trial, attention principally directed to company's loss as if its loss and loss of other plaintiff were in large part the same — plaintiffs' and defendant's cases on economic loss based on opposing experts' projections from primary materials not all tendered at trial — trial judge accepts neither expert in full — does not reveal his own method of arriving at figure by reference to which he arrived at judgment amounts — two significant errors of approach identified on appeal — trial judge's assessment took into account reservations concerning possible overstatement of plaintiffs' cases based on demeanour of witnesses — combination of this, with lack of primary materials on economic loss make reassessment by appellate court impossible on any proper basis — new trials ordered of the cases of each plaintiff.

Mahoney JA I agree with the judgment of Priestley JA which I have had the privilege of reading.

This is a case in which it is desirable that the litigation be brought to an end as soon as may be. The parties have not concurred in asking the Court to reassess the damages without a further hearing. They are entitled to take that course and, having regard to the difficulties of reassessment, they are not to be criticised because they have not been able to agree upon the reassessment. I have considered whether, notwithstanding that there is no common agreement to that end, the Court can yet undertake such a reassessment. Unfortunately, I do not think that it would be proper for it to do so. The circumstances have been outlined in the judgment of Priestley JA. It may have been possible for the Court to reassess the damages if the parties had agreed upon the principles and the facts upon which the reassessment should be made. But, for reasons which are understandable, there has been no such agreement. Therefore, I agree that the reassessment must be undertaken in the context of a new trial.