NOMINAL DEFENDANT v GARDIKIOTIS [1994] NSWCA 310

NOMINAL DEFENDANT v GARDIKIOTIS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER, and SHELLER JJA 28 February 1994, 19 May 1994

[1994] NSWCA 310

MOTOR VEHICLE ACCIDENT — MULTIPLE SCLEROSIS — CAUSATION — MEDICAL EVIDENCE — DAMAGES — VICISSITUDES — REDUCED LIFE EXPECTANCY — REDUCTION FOR LATTER ONLY — FUTURE MEDICAL EXPENSES — POSSIBILITY OF A CRISIS — NO DISCOUNT FOR COSTS ARISING ON INJURY — FUNDS MANAGEMENT FEE — UNREASONABLE 2 SETTLEMENT OFFER — DISCRETION TO AWARD INTEREST.

The respondent/cross-appellant was involved in a motor vehicle accident. She had already contracted some form of multiple sclerosis, but the condition deteriorated/progressed to a more malignant phase following the accident. His Honour accepted that the accident was responsible for this. The appellant on contested liability and causation, and the respondent cross-appealed as to quantum.

HELD:

(1) The finding of causation was adequately supported by the medical evidence. The appellant's primary medical witness did make an error in believing the MS to be concentrated in areas affected by the accident, but this and other deficiencies in the evidence did not materially affect his Honour's analysis.

(2) The awards under most heads of damages must be adjusted in the circumstances, because inter alia -

(a) The relevant indexed statutory maximum for future non-economic loss is that at the date of this judgment Marsland v Andielic (No 1) (1993) 31 NSWLR 162 at 165;

(b) Future economic loss, having been reduced by estimating only 15 years future working life, should not have been further reduced by applying a 30% discount for vicissitudes. This applies also to future medical expenses Sharman v Evans (1976) 138 CLR 563 at 587;

(c) Future medical expenses should have included hospitalization for one week per year Malec v J C Hutton Pty Ltd (1990) 169 CLR 639;