PADOVAN v RATKOVIC [1995] NSWCA 348

PADOVAN v RATKOVIC

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and COLE JJA 17 March 1995, 17 March 1995 [1995] NSWCA 348

QUANTUM — INSUFFICIENT AWARD OF DAMAGES — s79 MOTOR TRAFFIC ACT

FACTS:

Appellant appealed quantum of damages awarded particularly under s79 Motor Traffic Act.

HELD:

(1) Assessment of damages for non-economic loss under s79 of the Motor Traffic Act is approached by asking the question did the plaintiff have a significant impairment and if yes, what is the proportion of that impairment relative to the most extreme case.

Meagher JA In this matter the appellant was involved in a motor vehicle accident on 12 March 1989 and at a trial before his Honour Mr Justice Newman obtained a judgment of $6,628.20. He appeals against that judgment on the ground that it is insufficient.

As far as my view is concerned, I am of the opinion that the appeal should succeed. The principal ground on which I take this view is his Honour's treatment of the matters under s79 of the Motor Traffic Act.

The appellant suffered not only pain, discomfort and loss of amenities of life, but he also suffered disfigurement and general suffering. Those two additional elements ought to have been taken into account on the plain wording of the Act and were not. But that is the least of the problems.

The major problem with his Honour's treatment of non-economic loss is the fact that it seems in a wholesale way to disregard the procedure that s79 of the Act makes mandatory. What his Honour said was this:

"As far as general damages are concerned, in my view the sum of $10,000 would well and truly compensate the plaintiff for any past, present and future pain, discomfort and loss of amenities of life. However, this sum does not reach the threshold constituted by s79 of the Act. Accordingly, the plaintiff is not entitled, in this case, to an award of general damages."