Drobek v Braun [1999] NSWCA 264

New South Wales Court of Appeal CITATION : Drobek v Braun [1999] NSWCA 264 FILE NUMBER(S) : CA 40534/98 HEARING DATE(S) : 19 July 1999 JUDGMENT DATE : 19 July 1999

PARTIES : Maria Drobek v Kay Braun JUDGMENT OF : Meagher JA at 24; Cole AJA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 40534/98 LOWER COURT JUDICIAL OFFICER : Puckeridge DCJ

COUNSEL : Appellant: Mr P.D.E Grieve QC & Mr Frame Respondent Mr J. Poulos QC and Ms N. Abadee Appellant: Lamrocks Respondent: Abbott Tout SOLICITORS :

CATCHWORDS : ACTS CITED : Motor Accidents Act 1988 s 72 CASES CITED: Moran v McMahon (1985) 3 NSWLR 700 at 718 Baldwin v Lisercic CA 20 April 1993 (Butterworths Unreported Judgments) DECISION : Appeal upheld; Judgment increased by $7097 to $200,219; Compromise in excess of that sum; Appellant to pay respondent's costs on solicitor and client basis.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40534/98 MEAGHER JA COLE AJA Monday 19 July 1999 MARIA DROBEK v KAY BRAUN

JUDGMENT

1 COLE AJA: The appellant, Maria Drobek, has challenged on appeal the award of damages made by Puckeridge DCJ in her favour. She contends that his Honour erred in relation to three aspects of damages, namely his assessment of past and future economic loss, his failure to assess damages in respect of superannuation and his failure to assess damages in respect of past and future requirements for domestic services. It is convenient to deal with each of these in turn. 2 Before the trial judge, liability was not in issue. 3 The appellant was injured on 24 April 1994 when a vehicle in which she was travelling was struck by another vehicle from the rear, pushing her vehicle into another ahead of her. She had previously been injured in a motor accident in 1989 but, as was found, had substantially recovered from the effects of that accident. The issue for the trial judge was to determine the effect of the 1994 accident upon the plaintiff appellant. 4 It has long been established that an appellate court should not interfere with the assessment of damages for personal injuries made by a trial judge unless it can be shown that the trial judge acted on a wrong principle of law, misapprehended the facts, or that the amount of damages awarded is so inordinately low or high as to be a wholly erroneous estimate of the damages suffered. (See for instance Moran v McMahon (1985) 3NSWLR 700 at 718 in the judgment of Priestley JAand the cases there referred to.) 5 The respondent claimed at trial that the plaintiff was fit for work. The trial judge, having regard to the evidence before him, including video evidence, found that "Because of neck pain and discomfort, she does have an incapacity but such incapacity could not be considered as total."