ABBOUD v LAZAREVIC [1997] NSWCA 3

ABBOUD v LAZAREVIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P and STEIN JA 13 November 1997

[1997] NSWCA 3

Stein JA The only issue in this appeal is whether the trial judge erred in assessing non-economic loss at 25 per cent of a most extreme case.

The respondent/plaintiff was involved in a rear-end motor vehicle collision on 17 August 1995. The claim was made on 19 September 1995. On behalf of the appellant it was submitted, that s79(1A) of the Motor Accidents Act (1988) applied, since the accident occurred prior to 26 September 1995.

Alternatively, it is submitted that if s79(1A) did not apply, the intention of the Act was nonetheless to limit damages in cases of minor injuries or small claims It seems to me that s79(1A) does not apply to this accident given the date of the claim (see Schedule 4, Pt7 cl17(1)).

In his opening Mr Nock SC confirmed that he accepted this as the position. However, since I am of the view that whether s79(1A) applies or not makes no difference to the fate of the appeal, I will approach the matter on the basis of Mr Nock's submissions.

For the record s79(1A) provides as follows:

The object of this section is to limit the amount of damages for non-economic loss in cases of claims relating to relatively minor injuries, in order to achieve the object of the Act of more fully compensating those with more severe injuries at a cost the community can afford to meet.

It is the submission on behalf of the appellant that the injuries suffered by the respondent were 'relatively minor'. Accordingly, the damages for non-economic loss should be limited in order to achieve the object of more fully compensating those with more severe injuries. It is the submission of Mr Nock SC, that the finding of 25 per cent of a most extreme case was excessive.

His Honour the trial judge made no specific reference to s79(1A). However, he was not obliged to do so since it seemed it did not apply at the time. Nonetheless, it is apparent from a reading of the judgment that his Honour applied s79, including s79(2). It seems to me that the appeal really boils down to whether the finding of 25 per cent was within the discretionary range. In this regard it may be mentioned that counsel representing the defendant at the trial had submitted that the non-economic loss should be assessed at 18 per cent.