CAMPBELL v OLIVER [1996] NSWCA 89

CAMPBELL v OLIVER

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA, COLE JA and Simos AJA 29 August, 11 September 1996

[1996] NSWCA 89

Motor Vehicle Accidents — Plaintiff Injured in Two Separate Motor Vehicle Accidents — Claim for Damages Resulting from First Accident Settled — Damages Awarded in Claim for Damages Resulting from Second Accident Solely Attributable to Exacerbation of Injuries Sustained in First Accident Caused by Injuries Sustained in Second Accident.

Sheller JA. I agree with the reasons for judgment of Cole JA and Simos AJA and the orders proposed by Cole JA..

Cole JA. On 28 February 1996 Herron DCJ awarded the respondent in respect of injuries suffered in an accident on 23 August 1993 the following sums:

1. Domestic Assistance $ 3,120.00 2. Past wage loss

(a) 20 May 1994-16 March 1995 $ 3,075.00 (b) 17 March 1995-28 February 1996 $19,345.00 3. Future loss of earning capacity $21,000.00 4. Damages for non-economic loss $32,200.00 5. Out-of-pocket expenses $10,650.06 TOTAL: $89,400.06

Judgment was entered in the sum of $89,400.

commencement of the proceedings the action in respect of the earlier accident was settled. As Herron DCJ recorded, the respondent presented her case in respect of the second accident on the basis that 'the plaintiff's disabilities of which she complains really, in essence, are a result of the accident on 23 August 1993, aggravating the pre-existing condition which the plaintiff had and which aggravation really has not ceased'.

It is contrary to any fair reading of the judgment to suggest, as the appellant did, that his Honour did not understand his task as being the assessment of damages flowing from the second accident, or that his Honour did not recognise that in assessing the plaintiff's claim it was necessary to distil the disabilities flowing from the second accident from those caused by the first.