STATE TRANSIT AUTHORITY OF NEW SOUTH WALES v MALEK and ANOR [1996] NSWCA 500

STATE TRANSIT AUTHORITY OF NEW SOUTH WALES v MALEK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE and SHELLER JJA, and WADDELL AJA 2 April 1996, 2 April 1996

[1996] NSWCA 500

DAMAGES — motor vehicle accident — personal injuries — failure to apportion damages for previous injuries — re-assessment of damages

Sheller JA In proceedings started in the District Court in 1984 the first respondent, Charles Malek, sued the Urban Transit Authority, as the appellant was then known, and David Gatt to recover damages for injuries alleged to have been caused to Mr Malek's left knee.

The injuries were said to arise out of an accident that occurred at about 3.45pm on Wednesday 4 May 1983 when Mr Malek was standing near the north eastern kerb of Hollingshead Street, Mascot near the intersection with Botany Road. A bus, owned by the appellant and driven by Mr Gatt, turned left round the corner from Botany Road into Hollingshead Street and collided with the rear of a Holden Camira which was parked in Hollingshead Street on the left hand side of the street as the bus was proceeding. The collision pushed the Camira onto Mr Malek, pinning him between the front of the Camira and another parked vehicle. The appellant admitted liability on its own behalf and on behalf of Mr Gatt.

The defendants filed a third party notice against the second respondent, Tony Sarkis, the owner and driver of the Camira, claiming contribution and indemnity arising out of what was alleged to be Mr Sarkis' negligence. The proceedings were heard by his Honour Judge Lloyd-Jones. On 3 June 1992 he gave a verdict on the third party notice for Mr Sarkis. On 5 June 1992 his Honour delivered judgment assessing the damages in the claim by Mr Malek against the appellant and Mr Gatt.

Mr Malek was born on 18 April 1945 and accordingly was aged 47 at the time of the trial. His Honour found that since an accident in 1977 he had had a meniscus problem which persisted up to the time of the trial. Although his Honour did not mention this, the problem was with Mr Malek's left knee. His Honour said it was important to note that this appeared to be somewhat less dominant in Mr Malek's problems than the consequence of the patella injury the result of the crushing episode between the two cars on 4 May 1983.