MAHONY v WATSON [NO 2] [2003] NSWCA 309

New South Wales Court of Appeal

CITATION : MAHONY v WATSON [NO 2] [2003] NSWCA 309 HEARING DATE(S) : 3 September 2003 JUDGMENT DATE : 31 October 2003

JUDGMENT OF : Sheller JA at 1; Young CJ in Eq at 9; Gzell J at 10 DECISION : 1. Appeal allowed; 2. Judgment of the District Court of 22 October 2002 set aside; 3. In lieu thereof, judgment for the appellant in the sum of $344,421.19, such judgment to take effect from 22 October 2002; 4. The respondent to have credit for any part payment of the judgment; 5. the respondent to pay the appellant's costs of the appeal and on an indemnity basis from 7 February 2003; 6. Note that the order for costs in the District Court in favour of the appellant made on 22 October 2002 remains undisturbed.

CATCHWORDS : Appeal - DAMAGES - negligence - personal injury - evidence - causation - injury received in motor vehicle accident - whether further injury sustained in subsequent motor vehicle accident - apportionment of damages - liability of respondent - whether trial Judge's conclusion to discount damages by reason of subsequent accident was correct mitigation of damages - whether finding by trial Judge of a failure to mitigate was correct - costs order LEGISLATION CITED : - CASES CITED : - PARTIES : Garry Thomas Mahony - Appellant Michael Watson - Respondent FILE NUMBER(S) : CA 41047/02 COUNSEL : L King SC/J T Kearney - Appellant M J Neil QC/D Ronzani - Respondent SOLICITORS : Michael Evers & Co - Appellant Blake Dawson Waldron - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 1062/00 (Newcastle) FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER :