Joukhador v Donnelly [1999] NSWCA 468

New South Wales Court of Appeal CITATION : Joukhador v Donnelly [1999] NSWCA 468 FILE NUMBER(S) : CA 40633/98 HEARING DATE(S) : 22/09/99 JUDGMENT DATE : 17 December 1999

PARTIES : George Joukhador Neville Donnelly JUDGMENT OF : Meagher JA at 1; Beazley JA at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 10183/97 LOWER COURT JUDICIAL OFFICER : Gibb ADCJ

COUNSEL : Appellant: B Donovan QC/ C P Locke Respondent: R Tonner/ E Romaniuk SOLICITORS : Appellant: L W Williams & Associates Respondent: Moray & Agnew CATCHWORDS : Damages; Motor vehicle accident; past and future economic loss; non economic loss; test of probabilities versus test of possibilities ACTS CITED : Suitor's Fund Act 1951 (NSW) Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 CASES CITED: Medlin v State Government Insurance Commission (1995) 182 CLR 1 Younie v Martini (unreported, New South Wales Court of Appeal, 21 March 1995) DECISION : Appeal allowed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40633/98 DC 10183/97

MEAGHER JA BEAZLEY JA

Friday, 17 December 1999

George JOUKHADOR v Neville DONNELLY

FACTS

The appellant was injured in a motor vehicle accident in 1993 (the 1993 accident). This was at least the third accident he had been involved in, in the previous seven to eight years. Prior to the 1993 accident, he was diagnosed as suffering from a personality disorder and depression. The trial judge found that in the 1993 accident the appellant sustained fresh injuries as well as aggravating pre-existing injuries. Her Honour assessed for non-economic loss on the basis of twenty-eight per cent of a most extreme case. However, her Honour held that the appellant's work capacity had not been affected and made no award for past or future economic loss. Her Honour awarded the appellant damages for out-of-pocket (medical) expenses, but disallowed the claim for future out-of-pocket expenses on the basis there was no evidence of the cost of such expenses. She also disallowed the claim for future operative treatment on the basis the appellant was unlikely to undergo such treatment. The appellants submitted that the trial judge erred in failing to make such awards. The appellant further submitted that her Honour applied the wrong test in determining the entitlement to damages. It was submitted her Honour applied a test of probabilities, rather than a test of possibilities.