STIPIC v ROGRIGUEZ [1995] NSWCA 458

STIPIC v ROGRIGUEZ

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY and MEAGHER JJA 8 March 1995, 23 March 1995

[1995] NSWCA 458

Motor vehicle accident — General damages Future economic loss included therein Reassessment of all elements of damages

Appeal from District Court — Assessment of Damages from motor vehicle accident. General damages — 17.5 per cent of a most extreme case not excessive, though at top of range — Judge included amount in respect of future economic loss in assessment of general damages — Procedure not permitted under Motor Accidents Act — Error of law. Reassessment of Damages — Reassessment made of all elements of damages.

Mahoney JA The plaintiff was injured in a motor vehicle accident on 14 July 1990 and sued the defendant for damages. The defendant has admitted liability. On 5 November 1993 Downs DCJ ordered the plaintiff damages assessed at $47,055. The damages were made up as follows:

Past economic loss $12,546 General damages 19.600 Out-of-pocket expenses (agreed) 17.385 $49,531 2.476 Less seat-belt deduction $47,055

The plaintiff has appealed to this Court against his Honour's award. Mr Semmler QC, who appeared for the plaintiff, accepted that his Honour's findings of fact were accurate and did not contest them. The appeal was directed only to two things: the award for general damages; and the award for past and future economic loss.

The judge's findings in relation to the accident and its effects were as follows:

"The collision caused her to strike the left side of her head and neck, and her left shoulder against the passenger side door of the vehicle. She was then thrown forwards and her chin struck the back of the front seat. Following this she was thrown backwards and her right arm struck the back of the rear seat. She was conveyed to Prince of Wales Hospital where she remained as an in-patient until 20 July 1990. She was diagnosed as having suffered a fracture of the left clavicle and a fracture of the right humerus. On 15 July 1990 under general anaesthetic, open reduction and internal fixation of a Rush nail was performed upon her right humerus.