CRASTI v HEITMANN [1993] NSWCA 77

CRASTI v HEITMANN

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, HANDLEY JA and Cripps JA 10, 13 September 1993

[1993] NSWCA 77

The appellant and respondent were in an accident involving a collision between a car and a motor bike. The appellant was found 75% negligent and the respondent was found guilty of contributory negligence 25%. Both the appellant and respondent appealed against liability, apportionment and quantum, including interest on past general damages and the amount allowed for future care and assistance. The trial judge's decision was given before the High Court's decisions in Gogic and Van Gervan.

Held:

The trial judge did not err in his findings as to liability. The Court should not interfere in the trial judge's assessment of apportionment it not having been demonstrated that the trial judge erred.

The trial judge did not err in his assessment for future care. (per Cripps JA, Clarke JA dissenting): Although the assessment of damages was not in line with Gogic and Van Gervan, this error should not be allowed to be raised in the appeal.

(Per Handley JA): A change in the law after the date of trial does not entitle a party as of right to have the Court correct the trial judge's decision in a case where no other error is established.

MPB(SA) Pty Limited v Gogic (1991) 171 CLR 657

Van Gervan v Fenton (1992) 175 CLR 327

Pennington v Norris (1956) 96 CLR 10

Piening v Wanless (1968) 117 CLR 498

Clarke JA. The Court is ready to deliver judgment. I will ask Cripps JA to deliver the first judgment.

Cripps JA. On 6 December 1980 Mr Heitmann was seriously injured when a motor bike he was riding came into collision with a motor car driven by Mr Crasti. He sued Mr Crasti in the Supreme Court for damages for personal injuries arising out of the accident. On 12 October 1990, Mr Justice Finlay directed the entry of judgment for Mr Heitmann in an amount of $237,045. Finlay J found Mr Crasti was negligent and Mr Heitmann was guilty of contributory negligence. Mr Heitmann was found to be seventy five per cent responsible for his injuries and Mr Crasti twenty five per cent. As a result, the total assessment of damages was reduced from $984,108 to $237,045.