MALLAH v KETI [1999] NSWCA 100

Reported Decision : 46 NSWLR 291

New South Wales Court of Appeal CITATION : MALLAH v KETI [1999] NSWCA 100 FILE NUMBER(S) : CA 40233/98 HEARING DATE(S) : 1 April 1999 JUDGMENT DATE : 20 April 1999

PARTIES : Wafa Mallah - A Iona Keti - R JUDGMENT OF : Sheller JA at 1; Fitzgerald JA at 38

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 7616/96 LOWER COURT JUDICIAL OFFICER : Sidis DCJ

COUNSEL : R W Tregenza - A M W Williams - R SOLICITORS : Kesby Zaccca & Co - A Henry Davis York - R CATCHWORDS : NEGLIGENCE; DAMAGES; INADEQUACY OF VERDICT; OPERATION OF S79A OF MOTOR ACCIDENTS ACT 1988 ACTS CITED : MOTOR ACCIDENTS ACT 1988 DECISION : APPEAL ALLOWED

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40233/98 DC 7617/96 SHELLER JA FITZGERALD JA

MALLAH v KETI

The appellant was awarded a verdict of $6,572.70 by Sidis DCJ for damage suffered as a result of a motor vehicle accident which was caused by the respondent's negligence. This sum comprised $2,500 for economic loss and $4,072.70 for past out of pocket expenses. The appellant sought leave to appeal on the basis that the verdict was inadequate.

The appellant submitted that the trial Judge misunderstood and misstated the test required by s79A of the Motor Accidents Act 1988 to be followed in assessing damages for non-economic loss, which were claimed to be pain, suffering and loss of amenities of life. It was submitted that the trial Judge assessed only the claimant's condition as at the time of trial in March 1998 and excluded pain and suffering between the date of the accident on 25 April 1996 and the time of the hearing.