KNOX v SALVADOR [1994] NSWCA 168

KNOX v SALVADOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 5 July 1994, 5 July 1994 [1994] NSWCA 168

DAMAGES — motor vehicle accident — whether the assessment by the trial Judge of damages for non economic loss as being 15% of a most extreme case was wrong — held: it was not — no question of principle.

ORDER Appeal dismissed with costs. Clarke JA I will ask Handley JA to give the first judgment.

Handley JA This is an appeal by the plaintiff from the assessment of her damages by his Honour Judge Mahoney QC. The plaintiff was injured in a motor car accident on 23 October 1988 shortly before her sixty fourth birthday. The trial Judge awarded damages amounting to $30,247.85. The plaintiff's appeal is directed solely at his Honour's award for non-economic loss. His Honour assessed this pursuant to s79(2) of the Act as being fifteen per cent of a most extreme case resulting in an award based upon the prescribed maximum at the date of judgment of $14,150.

The appellant has challenged his Honour's assessment of the plaintiff's damages for non economic loss as being no more than fifteen per cent of a most extreme case. As I have said, the plaintiff was nearly sixty four years of age at the date of the accident and nearly sixty nine at the date of judgment, she then having a life expectancy of some sixteen years.

There was no doubt that the plaintiff suffered serious injuries in the accident. His Honour found these to be a fracture of the sternum a compression fracture of the eleventh thoracic vertebra, a soft tissue injury to the lower portion of the right leg and shock. He also inferred that she had sustained severe soft tissue damage in the areas overlying the sternum and spinal fractures.

The immediate consequences of the accident, as found by his Honour, were excruciating pain in her torso to such an extent that she experienced difficulty both in speaking and breathing. She continued to suffer severe pain following her discharge from Sydney Hospital a few days after the accident. This was eventually diagnosed by Dr Seaton, an orthopaedic specialist, to whom she was referred by her general practitioner, as due to an increase in the compression at her eleventh thoracic vertebra.