PACE v WEBBER [1999] NSWCA 190

New South Wales Court of Appeal CITATION : PACE v WEBBER [1999] NSWCA 190 revised - 15/06/99 FILE NUMBER(S) : CA 40147/98 HEARING DATE(S) : 4 June 1999 JUDGMENT DATE : 4 June 1999

SIMON PACE PARTIES : v GARY BRIAN WEBBER JUDGMENT OF : Meagher JA at 18; Handley JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 6295/97 LOWER COURT JUDICIAL OFFICER : Goldring DCJ

COUNSEL : R S McIlwaine SC (Appellant) B H K Donovan QC/C P Locke (Respondent) SOLICITORS : Adelsteins (Appellant) John Simpson & Co (Respondent) CATCHWORDS : DAMAGES - mitigation of damages by injured person - Motor Accidents Act 1988 s 39 - assessment of non-economic loss ACTS CITED : Motor Accidents Act DECISION : Appeal allowed in part

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40147/98

MEAGHER JA HANDLEY JA

4 June 1999 SIMON PACE v GARY BRIAN WEBBER

JUDGMENT

1 HANDLEY JA: This is an appeal by a defendant from the assessment of the plaintiff's damages by Goldring DCJ. The plaintiff was injured in a motor vehicle accident on 4 October 1994 and sued the driver of the other vehicle to recover damages for his injuries. Liability was not in issue. 2 Goldring DCJ assessed the plaintiff's damages at $644,842.51 and subsequently ordered an additional amount for interest and made a special order as to costs. 3 The defendant has appealed and the appeal has been limited to three questions. The first concerns the awards for economic loss and involves s 39 of the Motor Accidents Act in its original form. The second question relates to his Honour's finding on non economic loss and, in particular, his finding that the plaintiff's injuries represented 55 percent of a most extreme case. The third issue relates to a question of out-of-pockets and has been resolved by consent. In due course I will propose that the judgment be reduced by an amount of $1,250. 4 S 39(1) of the Motor Accidents Act in its original form provided: