MEZAS v KELLY [1994] NSWCA 203

MEZAS v KELLY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY; MEAGHER and HANDLEY JJA 11 October 1994, 11 October 1994 [1994] NSWCA 203

DAMAGES

FACTS: Defendant appealed a finding of back injury and plaintiff cross-appealed the award of damages for future economic loss.

HELD:

(1) Credibility based findings are generally not appealable.

(2) The finding of some chance of future employment means an award for future economic loss must be made.

ORDERS:

(1) Appeal dismissed with costs.

(2) Cross appeal allowed.

(3) Verdict below set aside and in lieu thereof judgment for the plaintiff for $256,856.00 to be entered as the date judgment of Mahoney DCJ, 18 may 1992.

(4) Appellant to pay cross-appellants costs and have a certificate under Suitor's Fund Act.

Meagher JA This is an appeal and a cross-appeal, the appeal by an unsuccessful defendant against a verdict in judgment given by his Honour Judge Mahoney in favour of the plaintiff who sued in respect of a motor vehicle accident suffered by him on 15 July 1978. The verdict was $246,856. Very properly counsel for the parties appealed a single issue and cross-appealed on a single issue.

His Honour the trial Judge found the accident caused neck and back injuries. The defendant concedes that the neck injuries were caused by the accident but submits the Judge should not have found that the accident caused back injury. The defendant does not deny the back injuries existed at the date of trial and says they were attributable not to the 1987 accident but to an accident in December 1982 which, admittedly, did cause some injury to the back.

Mr Russell, counsel for the appellant, argued with great skill the point very forcefully that from the date of the accident to 1992 there was no suggestion of any lower back complaint to any of the doctors that the plaintiff consulted, although he said, if such pain existed, one might have expected the plaintiff to have mentioned it.