MACKIE v FARRELL (BY HER NEXT FRIEND JOHN FARRELL) [1995] NSWCA 265

MACKIE v FARRELL (BY HER NEXT FRIEND JOHN FARRELL)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, PRIESTLEY and COLE JJA 14 March 1995, 14 March 1995

[1995] NSWCA 265

PERSONAL INJURIES — ASSESSMENT OF DAMAGES — The plaintiff/respondent was badly injured when a car being driven by the appellant/defendant collided with a train. She became completely quadriplegic. The only issue at the trial was the assessment of the damages to be paid to her. The trial judge assessed damages under a number of headings. The only point raised in the appeal concerned the amount awarded for future nursing care. It was argued on behalf of the appellant/defendant that the trial judge erred in the rate adopted in reaching the figure he did, in holding that a registered nurse rather than an enrolled nurse was reasonably required for nursing services, and in his estimation of the number of hours for which nursing services were required. Held: On the basis of the case before him, it was reasonably open to the trial judge to reach the conclusion that he did in assessing the amount for future nursing care.

Gleeson CJ Mr Justice Priestley will deliver the first judgment.

Priestley JA The appellant in these proceedings was one of two defendants at the first instance trial. He was the driver of a car which collided with a train at a level crossing. The respondent to the appeal, the plaintiff at the trial, was a passenger in the car. She was very badly injured. She became completely quadriplegic. Her skull was fractured. She suffered post-traumatic amnesia for seven weeks. Although there were different views as to the most likely explanation for it, there was no doubt that her cognitive functioning was impaired, at least to some extent, because of the injuries she suffered in the accident.

The accident was in November 1991 when she was seventeen. At the trial the appellant consented to judgment against him. The proceedings were discontinued against the other defendant. The question left for the trial judge was the assessment, in money terms, of the damages to be paid to the plaintiff/respondent. Amongst other things these damages had to cover the cost of future care of a young woman utterly unable to look after herself throughout her life which, on the evidence before the trial judge, was likely to last fifty-four years from the date of his judgment.