CHALKER and ANOR v MITCHELL [1996] NSWCA 98

CHALKER and ANOR v MITCHELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY JJA and GILES AJA 19 November 1996, 18 December 1996 [1996] NSWCA 98

NEGLIGENCE — damages for personal injury resulting from bus accident — challenge to awards for non-economic loss, past and future economic loss and gratuitous domestic assistance — questions of credit

The respondent, Cheryl Mitchell, was struck by a bus while she was waiting on the side of the road. She was thrown about three metres from where she was standing and landed heavily on the ground, her injuries requiring a trip to hospital. In the following months and years she suffered significant pain and disabilitiy and had a great deal of medical treatment. She sued the owner and the driver of the bus (the appellants) for damages. The case was heard by Sidis DCJ and, liability having been resolved, her Honour was only required to assess damages which she did in the amount of $448,827.12. The appellants appealed on the basis that her Honour erred in respect of the awards for non-economic loss, past and future economic loss and for gratuitous domestic assistance.

Held:

(1) Causation: In all the circumstances there is no acceptable evidence which contradicts Dr Segelov's opinion that the bus accident caused the disc

protrusion at L4/5 and that the respondent's symptoms were consistent with the existence of that condition. Her Honour was correct to make a finding of the relevant causal connection.

(2) Non-economic loss: The appellants have failed to demonstrate that her Honour did not deal in an appropriate manner with the two incidents nor did they establish any reason why this Court should interfere with the assessment of damages on the ground that her Honour failed to accord due weight to those incidents. The evidence supports the trial judge's conclusion and there is no proper basis on which to interfere with her assessment of 55% of a most extreme case.