KALACHIAN v JORGENSON [1996] NSWCA 287

KALACHIAN v JORGENSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, PRIESTLEY and COLE JJA 22 May 1996, 22 May 1996 [1996] NSWCA 287

Damages — Motor vehicle accident — Heads of damages — Economic loss — Loss of earning capacity — Medical evidence

DAMAGES — Motor vehicle accident — Heads of damages — Economic loss — Loss of earning capacity — Medical evidence.

APPEAL — COURT OF APPEAL — Appeal from decision of Master — Circumstances in which Court will interfere — Abalos v Australian Postal Commission (1990) 171 CLR 167; Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 299; Devries v Australian National Railways (1992-1993) 177 CLR 472 at 479 applied.

Appeal dismissed with costs.

Cole JA The appellant then aged 27 was involved in a motor vehicle accident on 24 June 1978. Before Master Malpass liability was not in issue and he awarded her the following damages:

Past out of pocket expenses 14,000.00 General damages 65,000.00 Interest on past general damages 40,950.00 Past economic loss 2,746.20 Interest on past economic loss 879.00 Past voluntary care 240.00 Future economic loss 10,000.00 Future out of pocket expenses 5,000.00 Totalling 138 815.20

This the Master rounded to $139,000.

The appellant seeks a new trial limited to damages. An amended notice of appeal raised three bases for that contention. Ground 1 was that the Master erred in rejecting Dr Middleton. Ground 2 contended that the Master erred in basing his rejection of the plaintiff's evidence upon two matters which did not provide a rational basis for the rejection. Ground 3 contended that the Master erred in confining loss of earning capacity to twelve weeks following a cervical spinal fusion operation and failing otherwise properly to compensate the appellant for her reduced earning capacity.

By reason of these three circumstances it was said as the fourth ground that all heads of damage had been discounted inappropriately by the Master and there should be a new trial.