CHRISTALLI and ANOR v CASSAR [1994] NSWCA 48

CHRISTALLI and ANOR v CASSAR SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

KIRBY P, POWELL JA and COLE JA 12 October 1994, 12 October 1994

[1994] NSWCA 48

DAMAGES — non-economic loss — comparison to a most extreme case — held: Age of plaintiff is to be considered.

Rees v Rees (1994) NSWJB 21 followed.

DISTRICT COURT - reasons - disposal of action for damages - desirability of formal reasons not decisions in continuous dialogue with counsel.

Palmer and Ors v Clarke and Ors (1989) 19 NSWLR 158 referred to.

DAMAGES - Motor Accidents Act 1988, s79 - non-economic loss - comparison of case to "a most extreme case" - consideration of plaintiff's age - primary judge (Madgwick DCJ) declines to take age into account - later authority of Court of Appeal in Rees v Rees, Court of Appeal (NSW), unreported, 28 February 1994; [1994] NSWJB 21 requires age to be considered - appeal against determination of percent for non-economic loss - held (Kirby P; Powell JA and Cole JA concurring):

(1) In performing the discretionary function under s79 Motor Accidents Act 1988, the primary decision-maker must take into account the plaintiff's age.

Southgate v Waterford (1991) 21 NSWLR 427 (CA); Rees v Rees (unreported), Court of Appeal (NSW), 28 February 1994; [1994] NSWJB 21 applied;

(2) Although an error of principle had been demonstrated, it was not one which affected the correctness of the ultimate order made;

(3) Appeal dismissed.

DISTRICT COURT - reasons for judgment - desirability or requirement of the provision of formal reasons in disposing of action for damages - held:

(1) Reasons for judgment should be given at the time orders are made.

Palmer and Ors v Clarke and Ors (1989) 19 NSWLR 158 (CA), referred to;

(2) However, having regard to the conduct of the proceedings, apparently with the concurrence of the parties, leave belatedly to raise an objection to the informal procedure adopted in the grounds of appeal should be refused.