REECE v REECE [1994] NSWCA 259

REECE v REECE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 28 February 1994, 28 February 1994

[1994] NSWCA 259

The trial Judge assessed 64 year old plaintiff as 33 1/3 per cent of a most extreme case - on appeal assessment held to be wholly erroneous by reference to position of much younger woman - assessment of 22 1/2 per cent substituted.

Clarke JA I will ask Handley JA to give the leading judgment.

Handley JA This is an appeal from a decision of Judge Nield which was given oncircuit at Bathurst on 4 June 1992. The claim brought by the plaintiff arises from a motor vehicle accident which occurred on 18 March 1990. Liability was not in issue and the plaintiff's damages fall to be assessed in accordance with the provisions of the Motor Accidents Act 1988 as amended.

The accident in which the plaintiff was involved was a severe one because the car in which she was a passenger collided head on with an on coming vehicle and then later collided with another vehicle. She was then sixty four years old. The trial judge accepted the plaintiff as a witness of truth and accepted the medical evidence called on her behalf. His findings of primary fact have been accepted by the appellant and none of them is challenged. There was no claim for continuing economic loss.

The question which was posed for his Honour arose under s79 of the Motor Accidents Act. subs! provides that damages for non economic loss should not be awarded to an injured person unless that person's ability to lead a normal life is significantly impaired by the injury suffered in the accident. There is no dispute on the appeal that the plaintiff's case is within subs1.

subs2 provides that the damages to be awarded for non economic loss shall be a proportion determined according to the severity of the non economic loss of the maximum amount which may be awarded. That was fixed by the statute at $180,000 but provision was made for this amount to be indexed and at the date of trial that figure had increased to $198,000. The Court was informed that it is currently $212,000.