PARISI v MUSTAFA [1996] NSWCA 421

PARISI vy MUSTAFA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER and COLE JJA 26, 27 August, 18 September 1996

[1996] NSWCA 421

The respondent was injured when she was struck by a motor vehicle driven by the appellant. The appellant admitted liability. The respondent brought an action, to which the Motor Accidents Act 1988 applied, to recover damages for her injuries. The trial Judge awarded the respondent damages for non-economic loss, having assessed that the respondent's was 80 percent of a most extreme case. For past and future care and assistance, his Honour calculated damages on the bases of past gratuitous care, 4 years of full time domestic assistance provided by her family, and assistance twenty-four hours a day, five days a week for the remaining 17.5 years of her expected life.

The appellant submitted that the awards were excessive first, because there was evidence that the respondent's immediate family would continue to care for her in the future, and second, because the trial Judge gave no discount for the likelihood or possibility that, even if the respondent had not been injured, her family would have continued to look after her full time.

HELD:

1. It was open to the trial Judge to find that there would be a need for supervision and professional care at some time in the future, even though the family offered to provide whatever assistance the respondent might need. There was no error in his Honour's approach to drawing a balance between these heads.

2. There was no evidence to support the conclusion that if the respondent had not suffered the injuries for which she claimed, she might have required future care either of a gratuitous or professional nature beyond such as would be comprehended by the vicissitudes accounted for in the statistical life expectancy. It was unnecessary to decide the question whether the vicissitudes of life should be taken into account in assessing an allowance for future hospital expenses; see Sharman v Evans (1977) 138 CLR 563; Frankcom & Anor v Woods (unreported) 1 October 1980 per Glass JA.