BOSEVSKI v BAGHDAI [1996] NSWCA 56

BOSEVSKI v BAGHDAI

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, COLE JA and BEAZLEY JA 13 May 1996

[1996] NSWCA 56

MOTOR VEHICLE ACCIDENTS — assessment of impairment — future economic loss — loss of capacity productive of economic loss.

The appellant was injured in a motor vehicle accident on 13 September 1993 and was awarded $22,027.25 comprising amounts for non-economic loss and out-of-pocket expenses. The appellant contended that the finding with respect to non-economic loss of 16% impairment was appealably inadequate and should have been assessed at 20%. It was also argued that an award should have been made for future economic loss. The appellant had not worked in the four years prior to the injury and the two years since.

HELD, dismissing the appeal: (1) The assessment of the appellant's inconsistent physical and verbal responses to medical examination was for the trial judge; (2) There was medical evidence supporting the assessment of impairment and the existence of contrary evidence did not establish error; (3) There was no evidence led to suggest that the diminished income earning capacity would have resulted in economic loss: Graham v Baker (1961) 106 CLR 340 followed.

Handley JA. This is a plaintiff's appeal from the decision of McLachlan DCJ given on 11 August 1995 in which he assessed her injuries under the Motor Accidents Act arising from an accident which occurred on 13 September 1993. His Honour found a verdict for the plaintiff for $22,027.25, comprising an award for non-economic loss, together with some out-of-pocket expenses. His Honour declined to award anything in respect of economic loss past or future.

Mr Murr, who appeared for the appellant and said everything that could be said on her behalf, challenged his Honour's award on non-economic loss as appealably inadequate. His Honour's assessment was based on a finding of a 16% impairment. Mr Murr suggested that an appropriate award which should be substituted by this Court would be based on an assessment of a 20% impairment.