NOMINAL DEFENDANT v ISHAC [1997] NSWCA 226

NOMINAL DEFENDANT v ISHAC

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL and STEIN JJA 14 November 1997, 14 November 1997 [1997] NSWCA 226

Damages — Motor Accidents Act — Penetrating injury to eye — Diminution of vision — Percentage of "a most extreme case" — No question of principle

Powell JA On 10 April 1995, the Respondent, Mr Ishac, then a little more than twenty-eight years of age, suffered injuries when the motor car which he was driving was, as he said, forced off the road by an unidentified motor vehicle which swerved into his path. As a result of his being forced off the road, the Respondent's motor vehicle collided with the rear of a vehicle which was parked on the side of the road and the Respondent sustained a number of injuries which are set out in some detail in the Judgment which Garling DCJ was later to deliver on 19 June this year.

It is unnecessary to detail all the injuries, it being sufficient to record that they included:

1. a penetrating injury to the right eye.

2. facial injuries.

3. a fractured nose.

The continuing disabilities from which the Respondent suffers are, for the most part those associated with the penetrating injury to his eye which has caused a significant diminution in his vision and rendered him at risk of development of cataracts, glaucoma, iritis and the like. In addition there are other disabilities as, for example, difficulties with bending causing dizziness, headaches, a concern about glare and other associated disabilities.

When the matter came for trial before Garling DCJ the question of liability was hotly disputed as the Appellant challenged the Respondent's case that he was forced off the road by the unidentified motor vehicle, to which I have earlier referred, and, rather, suggested that the collision was brought about by the fact, inter alia, that the Respondent was said to be affected by heroin, to which it was said the Appellant was addicted.