Ram v Oib [2003] NSWCA 223

New South Wales Court of Appeal

CITATION : Ram v Oib [2003] NSWCA 223 HEARING DATE(S) : 23 June 2003 JUDGMENT DATE : 12 August 2003

JUDGMENT OF : Sheller JA at 1; Santow JA at 2; McColl JA at 37 DECISION : (1) Appeal upheld; (2) Verdict and judgment for respondent set aside; (3) The proceedings to be remitted to the District Court for re-trial on the issue of the quantum of damages, noting that out of pocket expenses of $35,036.85 and the Fox v Wood component of $15,337.55 have been previously agreed; (4) The respondent to pay the appellant's costs of the appeal; costs in the court below shall be in the discretion of the judge hearing the re-trial.

CATCHWORDS : NEGLIGENCE - Motor vehicle accident - liability of negligent driver for damages for injury to other driver - failure to meet threshold for recovery under legislation - relative contribution of accident to appellant's pre-existing state of health - correct test in case of admitted negligence causing incapacity - out-of-pocket expenses and the Fox v Wood component previously agreed. EVIDENCE - were specialist doctors aware of pre-existing problems - no cross-examination of treating doctor or expert witnesses - new trial ordered. LEGISLATION CITED : Motor Accidents Act 1988 (NSW) s72(2); s79A Bugeja v Hatgiantounio [2002] NSWCA 132 CASES CITED : Fox v Wood (1981) 148 CLR 438 Purkess v Crittenden (1965) 114 CLR 164 PARTIES : Peter RAM (Appellant) Ronny OIB (Respondent) FILE NUMBER(S) : CA 41037/02 COUNSEL : D J RUSSELL, SC (Appellant) J D HISLOP, QC/ K ANDREWS (Respondent) SOLICITORS : Pigott Stinson Ratner Thom (Appellant) Vandervords (Respondent)