KRUF AND ANOR v MILLS [1995] NSWCA 251

KRUF v MILLS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ and ROLFE AJA 8 June 1995

[1995] NSWCA 251

ASSESSMENT OF DAMAGES Appeal from decision from District Court judge assessing damages for personal injuries resulting from negligent driving of a motor vehicle - no error demonstrated - no question of principle involved.

Gleeson CJ This is an appeal from a decision of his Honour Judge Patten who, in proceedings in the District Court in February of this year, awarded the plaintiff damages in the amount of $86,827.63 for personal injuries resulting from negligence of the driver of a motor vehicle. His Honour assessed the respondent's damages at $91,397.50 but reduced that sum by 5 per cent to allow for a finding of contributory negligence.

The components of the damages as assessed were as follows. The respondent's non-economic loss was assessed at $65,100. That was based on an assessment of 30 per cent as the appropriate proportion of the maximum amount that could be awarded pursuant to s79(2) of the Motor Accidents Act. Second, out-of-pocket expenses were agreed at $6,596.30. Third, it was agreed that the plaintiffs economic loss amounted to $4,701.20. Fourth, as a cushion or buffer in relation to diminished earning capacity in the future the judge allowed $15,000.

This appeal is brought only in relation to the assessment of damages and it is the first and fourth of the amounts mentioned that are in contest.

The respondent was born on 28 October 1969. The motor vehicle accident the subject of the proceedings occurred on 26 November 1992. At the time the respondent was aged twenty-three. The respondent was a passenger in a motor vehicle driven by the first appellant which ran off the roadway. The people in the vehicle, including the appellant, had been drinking and that was the basis for the finding of contributory negligence.