CIRCOSTA v FALZON [1999] NSWCA 308

New South Wales Court of Appeal CITATION : CIRCOSTA v FALZON [1999] NSWCA 308 FILE NUMBER(S) : CA 40169/99 HEARING DATE(S) : 16 November 1999 JUDGMENT DATE : 24 November 1999

PARTIES : Michael Aldo Circosta - Appellant Arthur Falzon - Respondent JUDGMENT OF : Meagher JA at 1; Giles JA at 2; Hodgson CJinEq at 37

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 5901/97 LOWER COURT JUDICIAL OFFICER : Garling DCJ

COUNSEL : JJ Graves SC & K Hawes - Appellant GTW Miller QC & GM Preston - Respondent SOLICITORS : McMahons, Sydney - Appellant Mario J Azzopardi - Parramatta CATCHWORDS : DAMAGES - non-economic loss - whether acceptance of medical evidence paid due regard to other evidence showing histories given to doctors were exaggerated - no point of principle - economic loss - whether evidence justified assessment based on average weekly earnings of a tradesman factored up - permissible course (Dunlany v The Hunters Hill Bus Co Pty Ltd, CA, 12 May 1993, unreported; Graham v Baker (1961) 106 CLR 344; Husher v Husher (1999) 72 ALJR 1414; Todorovic v Waller (1981) 150 CLR 402 referred to) - justified on the evidence. DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40169/99 DC 5901/97

MEAGHER JA GILES JA HODGSON CJ in Eq

Wednesday 24 November 1999

CIRCOSTA v FALZON

JUDGMENT 1 MEAGHER JA: I agree with the judgment of Giles JA. 2 GILES JA: The respondent was injured in an accident on 14 October 1994, when the motor vehicle driven by the appellant passed onto the wrong side of the road and collided with the motor vehicle driven by the respondent. Liability was admitted early in the trial, but quantum was significantly in issue. After a hearing over three days commencing on 17 February 1999, on 24 February 1999 Garling DCJ found a verdict in favour of the respondent for $610,516.00. 3 The major constituents of the verdict were non-economic loss of $129,500, past economic loss of $149,000, and future economic loss of $275,000. The appellant challenged each of these amounts, and submitted that there should be a new trial limited to assessment of damages.