THE NOMINAL DEFENDANT v O'DWYER [1995] NSWCA 326

THE NOMINAL DEFENDANT v O'DWYER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KiRBy P and COLE JA

7 September 1995, 7 September 1995

[1995] NSWCA 326

DAMAGES — personal injuries — estimate of case in comparison to "a most extreme case" — challenge to finding of disc injury challenge probably made good but no alteration in estimate of damages — held: Appeal dismissed.

DAMAGES — personal injuries — motor vehicle accident — no issues of liability — trial judge (Mahoney DCJ) awards $136,943.20 — appeal challenges estimate of case as 45% of "a most extreme case" — challenge to judge's finding of disc injury - challenge to estimate of future non-economic and economic loss — held: (Kirby P; Cole JA agreeing): (1) In the review of a damages judgment, the Court of Appeal considers the amount of the judgment signified in the order under appeal and is not concerned purely to correct reasoning or particular findings of the court appealed from; (2) Although the finding that the plaintiff had suffered a disc injury was disputable and possibly wrong, it did not affect the proper assessment or that which the Court of Appeal would, on reassessment, provide; (3) Accordingly, the appeal from the orders of the District Court should be dismissed.

Kirby P Before the Court is an appeal against an award of damages entered in the District Court by Mahoney DCJ. His Honour was sitting at Bathurst. The proceedings were heard on 6 and 7 April 1995. They resulted in the judgment, the subject of the appeal, delivered on the last mentioned date.

Judgment in a motor vehicle damages case

The proceedings arose out of a motor vehicle accident which occurred to Mrs Gail O'Dwyer (the respondent) on 6 August 1993. The appellant admitted liability. There was no allegation of contributory negligence. The proceedings therefore came before Mahoney DCJ for assessment of the respondent's entitlement to damages. His Honour returned a verdict and entered judgment in favour of the respondent in the sum of $136,943.20. This was made up as follows: