HAYES v PETROV [1996] NSWCA 244

HAYES v PETROV

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and COLE JJA 1 July 1996, 1 July 1996

[1996] NSWCA 244

MOTOR VEHICLE ACCIDENTS — damages — non-economic loss — impairment of ability to lead normal life — Motor Accidents Act 1988 s79(1) — plaintiff's ability to lead a normal life already impaired.

The plaintiff was involved in a motor vehicle accident on 15 November 1990. Negligence was not in dispute. The plaintiff had been involved in a motor vehicle accident in 1984 for which he recovered damages in 1989. The judge found that the plaintiff repeated many of his complaints from the earlier litigation and was not a witness of truth. The judge held that the 1990 accident aggravated his pre-accident condition and apart from out-of- pocket expenses of $4,027 awarded $21,460 based on 18% impairment for non-economic loss under s79 of the Motor Accidents Act.

HELD, allowing the appeal:

(1) Accepting the medical evidence at its highest for the plaintiff, it did not provide any firm basis for an assessment of the degree to which the plaintiff's condition had been aggravated by the second accident;

(2) Having regard to the adverse finding on the plaintiff's credit, there was no basis on the civil onus for a finding that the plaintiff's pre-accident diminished ability to lead a normal life had been significantly impaired by the second accident.

Handley JA

This is an appeal by the defendant from the assessment of the plaintiff's damages by McLachlan DCJ.

The action arose out of a motor vehicle accident which occurred on 15 November 1990. Negligence was not in dispute and in the result his Honour assessed the plaintiffs damages at $25,667 comprising an assessment under s79 of the Motor Accidents Act for non-economic loss of $21,460 based on 18 percent impairment and out-of-pocket expenses allowed at some $4,207. The appeal has been limited to the award or non-economic loss.