MOWLEM v CHISHOLM [1996] NSWCA 373

MOWLEM v CHISHOLM

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE JA, COHEN and Simos AJJA 13 December 1996, 18 December 1996

[1996] NSWCA 373

ABSENCE of procedural fairness — new trial ordered — mathematical factors in general assessment — Robinson v Riley (1971) 1 NSWLR 403 applied.

Cole JA The correctness of findings on both liability and quantum are raised by this appeal and cross-appeal. The appellant, Joseph Mowlem, contends that the finding of Sinclair DCJ that he was negligent in driving his motor vehicle on 3 June 1979 when the vehicle struck the respondent Scott William Chisholm, then aged three years seven months, should be set aside upon the ground that the basis of negligence found by the trial judge, namely that he was travelling too close to a line of parked cars from between two of which the respondent ran, was not a ground of negligence pleaded, addressed in evidence, or argued in submissions prior to counsel for the respondent raising the matter in address in reply. Accordingly he contends that the issue upon which he was found to be negligent was not in truth litigated at the trial and procedural fairness requires that the verdict in favour of the respondent be set aside. He seeks, alternatively, a verdict in his favour, or a new trial on that issue of liability. The respondent seeks to uphold the finding of liability upon two grounds raised by a notice of contention.

The appellant further contends that, in his assessment of damages, Sinclair DCJ erred in one respect, namely, the calculation of damages for future attendant care upon the basis of $15 per hour. He contends that the evidence established rates only of $12.50 or alternatively $11.60 per hour and has argued that, accordingly, the sum awarded for future attendant care of $600,000 should be reduced by 20% to $480,000 reflecting a calculation for future attendant care based on $12 per hour. By notice of cross-appeal the respondent contended that the learned trial judge had inadequately assessed the allowance for future attendant care in respect of the period when the respondent will be aged between fifty and seventy-four years, and consequently had provided inadequate fund administration costs. He sought an additional $137,068 for attendant care and an additional $11,036.46 fund administration costs in addition to the sum of $161,040 awarded in that respect at trial,