JOSIFOVSKI v CARIDA; CARIDA v JOSIFOVSKI [1995] NSWCA 225

JOSIFOVSKI v CARIDA; CARIDA v JOSIFOVSKI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY and COLE JJA 5 December 1995, 5 December 1995

[1995] NSWCA 225 DAMAGES — no question of principle.

Cole JA The respondent, Rade Josifovski was injured in two accidents, one in 1992, and another in February 1994. He commenced separate proceedings in respect of each accident. Liability was not in dispute in either, and both actions were heard together.

In respect of the June 1992 accident, the respondent was awarded $18,406.40 damages. Although the notice of appeal is entitled as an appeal against that judgment, the notice of appeal itself makes clear there is no appeal against that award of damages.

In respect of the February 1994 accident, at the hearing on 13 June 1995, McLachlan DCJ awarded the respondent the following sums:

1 Past economic loss; $7,300.00 2. Non-economic loss(22%); $30,340.00 3. Out of pocket expenses: $4,490.00 4 Future economic loss: $50,000.00 TOTAL $92,130.00

The appellant challenges items 2 and 4 alleging each should be nil.

The respondent had also been involved in an accident in 1981. Some of the medical evidence sought to apportion found disabilities between the three accidents. The trial judge found:

"As to the 1994 accident, this is a different assessment. It is interesting that both counsel, despite a number of opinions which apportion the disability even to the point of drawing in the 1981 incident, asked me to find that the 1994 incident was the worse (sic) of the two... [T]he defendant submits that the 1994 incident was a slight whiplash, not reaching the threshold. The plaintiff seeks 20-25%. The problem is that the plaintiff by his untruths has clouded the issue. I believe that has a disability but he is fit for many forms of work He should go out and find something. As to s79, I can only do the best I can. I assess it at 22%, $30,340 and I allow the out of pocket expenses at $4,490. As to economic loss, I allow him $430 per week from 7 February 1994 to date, equals $7,300. For the future I allow him a cushion of $50,000."!