Brien v Palmby [1999] NSWCA 355

New South Wales Court of Appeal CITATION : Brien v Palmby [1999] NSWCA 355 FILE NUMBER(S) : CA 40034/98 HEARING DATE(S) : 2 June 1999 JUDGMENT DATE : 29 September 1999

PARTIES : Kenneth Claude BRIEN & Sally Anne BRIEN t/as A-GRADE TYRES & BATTERY SERVICE (ARMIDALE) v David Eric PALMBY JUDGMENT OF : Mason P at 1; Meagher JA at 14

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 17/95 at Armidale LOWER COURT JUDICIAL OFFICER : MOORE DCJ

COUNSEL : Appellant: D. Fagan SC/G.B. Evans Respondent: P. Menzies QC/D.Jenkins SOLICITORS : Appellant: McMahons Respondent: Watson, McNamara & Watt. CATCHWORDS : negligence - assessment of damages - quantum and apportionment of damages - Motor Accidents Act 1988 - novus actus interveniens ACTS CITED : Motor Accidents Act, 1988. CASES CITED: Kavanagh v Akhtar (1998) 45 NSWLR 588, Robinson v Riley [1971] 1 NSWLR 403. DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA No. 40037 of 1998 DC No. (Armidale) 1995

MASON P MEAGHER JA

Wednesday, September 29 1999.

BRIEN & Anor v PALMBY

NEGLIGENCE - ASSESSMENT OF DAMAGES - QUANTUM AND APPORTIONMENT OF DAMAGES - MOTOR ACCIDENTS ACT 1988, SECTION (79)3-NOVUS ACTUS INTERVENIENS

A spare parts sales representative took his Land Cruiser vehicle in for a service. This service was performed negligently. As a result the plaintiff was involved in a car accident on 26 November 1991. He suffered quite painful injuries to the wrist and spinal regions. The pain worsened causing the plaintiff to mention to his employer he intended on seeking medical advice. Upon learning of the plaintiff's intentions the employer then sacked the plaintiff. The plaintiff was subsequently involved in another car accident on 6 October 1992. This presented him with a new set of injuries as well as aggravating the injuries caused by the first accident. The plaintiff took action and was granted judgment against the two defendants, namely the proprietors of the A-Grade Tyres and Battery Service (Armidale) and Richard Alexander Gardiner, the driver involved in the second accident. General damages were awarded to the sum of $123,500., plus damages for future economic loss assessed at $462 per week for twenty years. These damages were apportioned five-sevenths to the first defendants and two-sevenths to the second defendant. On appeal by the first defendants it was argued that his Honour erred in his assessment of damages by application of S79(3) of the Motor Accidents Act 1988 and also in the quantum of damages sought. It was submitted that his Honour erred in his apportionment of damages under the Act and that his Honour failed to consider any novus actus interveniens between the first and the second accidents in assessing damages. Held: Although the approach taken by the trial judge was unorthodox it was open to him to award the highest quantum of damages under the Act, and to apportion damages five-sevenths to the first defendants and two-sevenths to the second defendant. The termination of employment plus the second accident did not constitute any novus actus interveniens, thus it was open to the trial judge to apportion most of the damages to the first defendants. ORDERS 1. Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA: 40034/98 MASON P MEAGHER JA Wednesday 29 September 1999 Kenneth Claude BRIEN and Sally Anne BRIEN t/as A-GRADE TYRES & BATTERY SERVICE (ARMIDALE) v David Eric PALMBY