DALKILIC v NIA [1996] NSWCA 136

DALKILIC v NIA

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, HANDLEY JA and BEAZLEY JA

15 May 1996

[1996] NSWCA 136

MOTOR VEHICLE ACCIDENT — damages — error in form or substance.

The trial judge awarded the appellant $77,157.05 damages arising from a motor vehicle accident. He dismissed the appellant's claims of psychiatric illness and neck injury but was Satisfied that the accident had appreciably aggravated his pre-existing back condition though not as severely as claimed. The appellant claimed that the economic loss had been incorrectly assessed because the trial judge referred to "income losses" rather than the loss of income earning capacity and by noting that the income loss was "not entirely related to the accident" when compensation can be awarded for tortiously caused injury which is no more than a contributing cause of the losses in question.

HELD, dismissing the appeal: (1) On the evidence before the trial judge and his findings as to credibility and capacity, the errors were of form and not substance; (2) There was no substantial wrong or miscarriage.

Handley JA. This is an appeal by a plaintiff from the assessment of his damages by McLachlan DCJ. The motor vehicle accident occurred on 26 June 1992. The trial judge found the issues of liability in favour of the plaintiff and assessed his damages at $77,157.05.

The plaintiff's appeal has been directly principally at his Honour's assessment

for economic loss past and future, although Mr Puckeridge for the appellant did make some submissions about his Honour's assessment of non-economic loss at 18% of a most serious case resulting in an award of $21,460.00.

The plaintiff had been working prior to his accident as a truck driver doing heavy driving and carrying work. His income tax return for the year ended 30 June 1992, which related to all but four days of normalpre-accident work on his part, disclosed a nett income after tax of $395.00 per week.