MITCHELL v CHALKER SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA and SHELLER JA 8 March 1995 [1995] NSWCA 298 ASSESSEMT OF DAMAGES — ERROR OF LAW — MOTOR ACCIDENTS ACT Clarke JA. In this appeal Senior Counsel for the appellant contended at the outset that his Honour's method of assessment of damages under the Motor Accidents Act 1988 was wrong in legal principle. He added that counsel for the respondent did not dispute that the Judge had adopted a wrong method of calculating the damages. Upon that information being conveyed to the Court it sought from the respondent's counsel a statement of his position. In response, Mr McIlwaine said that his client could not advance any argument to support the trial Judge's legal approach, but neither could he consent to the judgment being set aside. In short he said that he could not deny that the trial Judge had made a legal error, but neither could he consent to the proposition that there should be an order made setting aside his judgment. In circumstances where it appears clear that in dividing by three the percentage which he found to represent the total incapacity of the appellant the judge was wrong, it is, I think unnecessary to go any further than saying that his Honour's judgment cannot stand. (See Muller v Sanders; Nominal Defendant v Sanders, Court of Appeal, 17 February 1995, unreported.) The parties are entitled to have damages assessed in accordance with the law. Insofar as his Honour did not do this, his judgment must be set aside. His Honour also made an adverse finding regarding the credit of the appellant. In these circumstances this Court is unable to reassess the damages and neither party has asked that we adopt that course. In the circumstances it is appropriate that the following orders be made: 1) Appeal allowed. 2) Judgment of Judge McLachlan be set aside and a new trial ordered limited to damges. 3) The respondent pay the appellant's costs of the appeal and have a certificate under the Suitors" Fund Act. 4) All previous costs are to be in the discretion of the trial Judge. Sheller JA. I agree. Clarke JA. The orders will be as I have proposed. Orders accordingly. Counsel for the appellant: CM O'CONNOR QC and R B McCLOGHRY Solicitors for the appellant: EUGENE LEPORE and ASSOCIATES 2 UNREPORTED JUDGMENTS Counsel for the respondent: R S McILWAINE Solicitors for the respondent: ABBOTT TOUT