PALUMBO v IZMIRLIAN [1995] NSWCA 353

PALUMBO v IZMIRLIAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ and ROLFE AJA 8 June 1995, 14 June 1995

[1995] NSWCA 353

Application for New Trial on the grounds that the trial Judge failed to make sufficient allowance for non-economic loss, past economic loss and future loss of earning capacity.

Court of Appeal in a position to re-assess damages.

Gleeson CJ I have had the advantage of reading in draft form the judgment of Rolfe AJA. I agree with the orders proposed by his Honour and with his reasons for those orders.

Rolfe AJA INTRODUCTION

The Appellant, who was born on 19 April 1951 in Italy, received personal injuries in a motor vehicle accident, which occurred on 27 October 1987. Liability was not in issue and the matter came before McDevitt DCJ for the assessment of damages on | February 1995. His Honour gave judgment on 17 February 1995.

At the time of the accident, and for some time before, the appellant and his wife conducted a pizza parlour, in partnership with each other, pursuant to which each was entitled to one half of the nett profits, which were distributed accordingly. Prior to the accident the appellant worked from 5.30 pm to the early hours of the following day each day, but since the accident he has only worked from 5.30 pm to 11.30 pm on all days, save for Tuesdays, on which day the business is not opened. The business was successful prior to the accident and has continued to be so since, notwithstanding the inability of the appellant to be involved in it for the time he previously was. This inability not only requires the business to be closed each Tuesday, but, from time to time, on other days the appellant is unable to work full time. The appellant is 44 years of age. His concern in the business is the making and sale of the products, in which his wife is involved. She also looks after the finances. His Honour accepted the plaintiff and his wife as truthful witnesses.