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." That approach does not ask the question: did the plaintiff or did he not have a significant impairment and if he did what was the proportion of that impairment to a most extreme case. It is that exercise which the Act mandates and it is that exercise which his Honour failed to implement. Nor do I feel any comfort that his Honour would have arrived at the same conclusion to which he did arrive if he had undertaken the task correctly. That being so, it is evident in my view that his Honour's conclusions cannot stand but I do not feel that we are in the position to remedy the defect. We do not know enough about the appellant. We are not in the position of having seen witnesses and we cannot arrive at any just estimate ourselves, in my view, of the proportion of the most extreme case which his injuries constituted. The result would inevitably be that there must be a new trial. 2 UNREPORTED JUDGMENTS I might add that in my opinion I am of the view that this unfortunate conclusion is fortified by what seems to me a misreading by his Honour of the income tax returns of the appellant. In view of the conclusion I have reached, irrespective of that fact, I shall not pursue the matter further. In my view, as I have said, the orders the court should make are appeal upheld, judgment below set aside and new trial on the question of damages. Priestley JA I agree. As Mr Justice Meagher has made clear in what he has said, the court in upholding the appeal on what has been called the s79 ground, is not doing so simply on the basis that the forms required by s79 were not observed by his Honour. There seems to be a real possibility that had his Honour gone through the procedures required by s79, he would have arrived at a different figure for what he termed "general damages". Interestingly in discussion between the Bench and counsel, it was mentioned that there are some practitioners at any rate who think they have observed that the introduction of s79 has had the result, in some cases, where comparatively small sums of damages have been awarded in the past for general damages when, under the Act, determination of non-economic loss is in question, becomes somewhat larger. Whether that is right or wrong, it illustrates the possibility at the very least that had the judge focused his mind on the questions s79 required him to and had he had regard to the maximum amount which may be awarded under the section, the figure which he mentioned as being the general damages figure could well have been relevantly different. Talso agree with Mr Justice Meagher's observations about the outcome of the appeal in the circumstances of this particular case being a new trial rather than a reassessment by this court. Cole JA I agree with the reasons advanced by Mr Justice Meagher and the orders of his Honour perhaps save to adding an order that the respondents should pay the appellant's costs, if qualified under the Suitors Fund Act. Priestley JA: The court's orders are that the appeal is upheld, the judgment below set aside, a new trial ordered. The court orders a new trial limited to damages and as to the costs of the appeal, the respondent is to pay the appellant's costs. There should be a certificate under the Suitors Fund Act if the respondent is qualified. (1) Appeal allowed with costs. (2) Judgment below set aside. (3) New trial on damages only. (4) Respondent to pay appellant's costs and to have a certificate under Suitors Fund Act. Counsel for the Appellant: D McGOVERN Instructed by: D STANEFSKA AND ASSOCIATES Counsel for the Respondent: DJ RUSSELL Instructed by: GE LAZAR, NSWIMC