Louizos v Smith & Anor [2002] NSWCA 366

New South Wales Court of Appeal

CITATION : Louizos v Smith & Anor [2002] NSWCA 366 FILE NUMBER(S) : CA 40710/01 HEARING DATE(S) : 1 November 2002 JUDGMENT DATE : 8 November 2002

Rita Louizos - Appellant PARTIES : Les Smith - First Respondent Paul Anthony O'Neil - Second Respondent JUDGMENT OF : Sheller JA at 1; Giles JA at 2

LOWER COURT JURISDICTION : District Court LOWER COURT DC 3978/00 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER :

COUNSEL : B J Gross QC - Appellant H Marshall - Respondents SOLICITORS : Heazlewoods - Appellant Gillis Delaney Brown - Respondents CATCHWORDS : Motor accident - assessment of damages - whether properly addressed - flawed in a number of respects - new trial necessary - no question of principle. ND CASES CITED: Dell v Dalton (1991) 23 NSWLR 528; Southgate v Waterford (1990) 21 NSWLR 427. DECISION : (1) Appeal allowed; (2) Set aside verdict and judgment for the plaintiff and order there be a new trial; (3) Respondents pay appellant's costs of the appeal; (4) Costs of the hearing before Gamble ADCJ be in the discretion of the judge conducting the new trial; (5) Respondents to have a certificate under the Suitors Fund Act if otherwise qualified.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40710/01 DC 3978/00

SHELLER JA GILES JA

Friday 8 November 2002 LOUIZOS v SMITH & ANOR Judgment 1 SHELLER JA: I agree with Giles JA. 2 GILES JA: A truck owned by the first respondent and driven by the second respondent ran into the back of a car in which the appellant was a passenger. In proceedings brought in the District Court the appellant claimed damages for a variety of injuries alleged to have been suffered in the accident and to have brought quite extensive disabilities. The respondents admitted breach of a duty of care owed to the appellant, but disputed the extent of injury suffered in the accident and the extent of disability. 3 Gamble ADCJ noted that the appellant tendered medical reports from her general practitioner, four orthopaedic surgeons, a neurologist, a dentist and a physiotherapist, and that the respondents tendered reports from an orthopaedic surgeon and a physiotherapist. Her Honour said that "All the reports are in agreement that Mrs Louizos suffered soft tissue injury only in the accident, described in several of the reports as 'musculo ligamentous strain of the cervical and lumbar spine'." Her Honour said that X-ray and CT scan of the appellant's cervical spine showed no abnormality, and that neurological tests were also normal. After some discussion of the appellant's treatment and employment history, her Honour found that the appellant "suffered soft tissue injury for which she has required little treatment apart from exercise, physiotherapy, and analgesics". 4 Gamble ADCJ then addressed the assessment of damages for non-economic loss and past and future economic loss. She concluded her reasons - "[The appellant] has suffered some loss due to the accident. She has incurred pain and suffering which is likely to be permanent and to require constant attention to proper exercise and posture. Her neck pain and her need for continuing dental treatment are not insignificant for a young woman, particularly one with the responsibility of caring for young children. There are some restrictions on her ability to find suitable employment although, fortunately they will not limit her choices very significantly." 5 Her Honour immediately stated her award of damages, as corrected in the manner shortly indicated being - "1. Past medical and related expenses 7,342