KNIGHT v CLARKE [1995] NSWCA 247

KNIGHT v CLARKE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 10 March 1995, 10 March 1995 [1995] NSWCA 247

DAMAGES — PERSONAL INJURIES — DEATH OF PLAINTIFF AFTER TRIAL.

Appeal by defendant from the assessment of plaintiff's damages under the Motor Accidents Act - respondent died while appeal pending - appellant contends damages should be reassessed - contends trial judge failed to allow for contingency of early death - Held: By taking into account plaintiff's life expectancy trial judge had allowed for possibility of premature death Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 applied - appeal dismissed.

Handley JA This is an appeal by the defendant from the assessment of damages payable to the plaintiff under the Motor Accidents Act arising from injuries sustained on 24 September 1990. Abadee J gave judgment on 27 July 1993 awarding the plaintiff the sum of $263,303.46.

The defendant's notice of appeal challenged the assessment of the plaintiff's non-economic loss as 60 per cent of a most extreme case, the assessment of future economic loss based on an on-going loss of $186 a week, and what was said to be an excessive award for future care.

Mr Mcllwaine, who has appeared for the appellant, but did not appear below, has not sought to argue any of these grounds. At the start of the appeal the Court's record was amended to reflect the fact that the respondent died between 4 November and 13 December 1994. The Court ordered that her Administrator be substituted as respondent to the appeal.

Mr McIlwaine has submitted that the Court should act upon its knowledge that the respondent died while the appeal was pending and, either re-assess the damages, or remit the matter for re-assessment to the Common Law Division.

In making these submissions Mr MclIlwaine attempted to distinguish Doherty v Liverpool District Hospital (1991) 22 NSWLR 284. In developing his argument he submitted that the learned trial judge had failed to allow for the possible adverse contingency of early death in assessing the plaintiff's damages for non-economic loss, future economic loss, future care and future expenses.