ROBERTS v WHITE [1999] NSWCA 12

New South Wales Court of Appeal CITATION : ROBERTS v WHITE [1999] NSWCA 12 FILE NUMBER(S) : CA 40780/97 HEARING DATE(S) : 18 November; 1998 JUDGMENT DATE : 12 February 1999

PARTIES : JAMES WILLIAM ROBERTS MARGARET WHITE JUDGMENT OF : Spigelman CJ at 1; Mason P at 2; Priestley JA at 52; Meagher JA at 53; Handley JA at 58

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 5543/91 LOWER COURT JUDICIAL OFFICER : Ainslie-Wallace DCJ

COUNSEL : A Shand QC/M T Vesper (Appellant) R Colquhoun/E Wood (Respondent) SOLICITORS : M J Raymond (Appellant) Colquhoun & Colquhoun (Respondent) CATCHWORDS : Damages; measure of damages in actions for tort; out of pocket expenses; damages for non-economic loss; prospective amendment of legislation; precedent; costs; Motor Accidents Act 1988 s79(1) ACTS CITED : Motor Accidents Act 1988 Motor Accidents (Amendment) Act 1993 DECISION : Appeal allowed in part

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40780/97 DC 5543/91

SPIGELMAN CJ MASON P PRIESTLEY JA MEAGHER JA HANDLEY JA

Friday 12 February 1999

James William ROBERTS v Margaret WHITE

JUDGMENT

1 SPIGELMAN CJ: I agree with Mason P. ____________________

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40780/97 DC 5543/91

SPIGELMAN CJ MASON P PRIESTLEY JA MEAGHER JA HANDLEY JA

Friday 12 February 1999

James William ROBERTS v Margaret WHITE

JUDGMENT

2 MASON P: The respondent was injured in a motor vehicle accident on 13 November 1989. She was in the course of her employment as a senior police officer when the vehicle which she was driving was struck from behind by the appellant's vehicle. Liability was not in issue. 3 Three actions were listed for hearing in the District Court before Ainslie-Wallace DCJ on 28 July 1997. There was the assessment of damages in the instant proceedings, and there were proceedings in relation to two later motor vehicle accidents involving the respondent that occurred on 28 March 1990 and 23 May 1990. These two cases were settled at the commencement of the hearing. The damages assessment in the respondent's action against the appellant proceeded over the next nine days. There was a verdict in the sum of $73,919.50. It had two components, out of pocket expenses of $15,729.50 and damages for non-economic loss awarded in accordance with s79 of the Motor Accidents Act 1988 on the basis of a 27% proportion of severity ($58,190). Each item of damages is challenged in this appeal, which is by leave. 4 The appeal raises one matter of detail and one point of principle. Out of pocket expenses 5 The matter of detail is a challenge to the assessment of out of pocket expenses. It is submitted that the evidence does not sustain an award exceeding $4,000 for expenses. This challenge should be rejected. The trial appears to have been conducted on the basis that the expenses claimed in an amended statement of particulars were in fact incurred. Not all of these expenses were allowed, and for some there was only a partial allowance. The reasoning, though sparse, contains a finding of a causal link between the expenses allowed and the accident for which the appellant was responsible. The learned trial judge indicated those items of the particulars she found "flowed from" the 1989 accident. 6 The appellant's submission that the period within which the expenses might be recoverable is the closed period prior to the respondent's return to full-time employment in May 1990 must also be rejected. The trial judge was aware that most of the expenses had been paid by the Police Department, but the trial was conducted on the basis that the respondent was required to reimburse her employer for these outlays. Motor Accidents Act 1988, s79: Matthews v Dean 7 The question of principle which led to the grant of leave involves the proper interpretation of s79 of the Act as it stood prior to 1 September 1994. The appellant was granted leave to appeal on condition that he submitted to such order as to costs as the Court hearing the appeal might decide is appropriate, bearing in mind the test case nature of the appeal and the various issues involved in it. 8 The Transcover scheme under the Transport Accidents Compensation Act 1987 was replaced from 1 July 1989 by the Motor Accidents Act 1988 ("the Act"). This purported to restore common law rights (cf s6), but in reality it substantially qualified the already significantly modified common law scheme that had existed for many years before 1987. (The common law did not provide plaintiffs with compulsorily insured defendants. But plaintiffs had to steer a course around doctrines of common employment, contributory negligence and actio personalis moritur cum persona. All of these "common law" principles had long been swept away by statute.) The Act imposes restrictions on the amounts which might be awarded for non-economic loss, coupled with threshold provisions designed to exclude small claims. Part 6 (ss68-82A) applies to an award of damages relating to death or injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle (s69(1)). Section 70 stipulates that "a court shall not award damages to a person in respect of a motor accident contrary to this Part." 9 Section 79 deals with non-economic loss. In its original form it provided: Determination of non-economic loss 79(1) No damages shall be awarded for the non-economic loss of an injured person as a consequence of a motor accident unless the injured person's ability to lead a normal life is significantly impaired by the injury suffered in the accident. (2) The amount of damages to be awarded for non-economic loss shall be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded. (3) The maximum amount which may be awarded for non-economic loss is $180,000 (or the maximum amount declared for the time being under section 80), but the maximum amount shall be awarded only in a most extreme case. (4) If the amount of non-economic loss is assessed to be $15,000 or less, no damages for non-economic loss shall be awarded. (5) If the amount of damages to be awarded for non-economic loss in accordance with subsections (1)-(3) is more than $15,000 but less than $55,000, the following deductions shall be made from that amount: (a) if the amount of damages is less than $40,000 - the amount to be deducted is $15,000; (b) if the amount of damages is not less than $40,000 - the amount to be deducted is $15,000 reduced by $1,000 for every $1,000 by which the amount of damages exceeds $40,000.