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 : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41047/02 DC 1062/00 SHELLER JA YOUNG CJ in EQ GZELL J Friday, 31 October 2003 MAHONY v WATSON [NO 2] Judgment 1 SHELLER JA: On 26 September 2003 the Court handed down reasons for judgment in this appeal and ordered each of the appellant and respondent to file and serve written submissions on what orders the Court should make. Those submissions have now been filed. 2 In my reasons for judgment, with which Young CJ in Eq and Gzell J agreed, for reasons I there gave, I said that I regarded a new trial as undesirable. "The appropriate order is that this Court substitute an amount of damages for the plaintiff which accords with [the trial Judge's] conclusions, but omits any deduction on account of the second motor vehicle accident or on account of failure to mitigate." 3 The appellant submits that the amount of $344,421.19 should be substituted for the judgment of $123,521.19. The substituted amount consists of: Non-economic loss calculated at 33 per cent of a most extreme case $102,000.00 Past economic loss - For period 29.6.98 to 1.12.98 $21,000.00 For period 1.12.98 to date of judgment $90,000.00 Fox v Wood component $8,859.32 Past superannuation $8,100.00 Future wage loss and future superannuation loss $90,000.00 Past out-of-pocket expenses $19,461.87 Future out-of-pocket expenses $5,000.00 4 The respondent conceded that these calculations were correct but submitted that the Court should order a re-trial. In particular, the respondent submitted that the need for a re-trial followed from the absence of any useful medical evidence as to the effect of the second accident on the appellant's loss. It was said that the interests of justice required a re-trial, where more useful medical evidence might be obtained by the parties and considered by the trial Judge. Further, it was pointed out that as a result of the cross-appeal as to costs, this Court was aware of the several offers of compromise. With due respect, I do not consider these to be matters which compel a new trial. In effect, the respondent is seeking a further opportunity to lead evidence, not available at the trial, to support a case of apportionment of damage between the injury sued on and the injury of April 1998. Costs 5 A verdict of $344,421.19 would exceed the amount of any of the respondent's offers of compromise and, accordingly, it is unnecessary for this Court to re-visit the trial Judge' erroneous exercise of discretion. 6 On 6 February 2003 the appellant's solicitors wrote to the respondent's solicitors enclosing a notice of offer of compromise on the following terms: "1. Verdict and judgment for the plaintiff in the sum of $200,000 plus costs as agreed or assessed. Both the principal offer and the costs offer are made in accordance with Part 19A of the District Court Rules and are made without prejudice same [sic - save] as to the questions of costs and interest. This offer may only be accepted on or before the expiration of 28 days after this offer is made." 7 The appellant accordingly seeks an order that the costs of the appeal should be paid by the respondent on an indemnity basis from 7 February 2003 and the respondent makes no submissions contrary to this. Conclusion 8 In my opinion, this Court is able, without the need of a new trial, to assess damages and should substitute the amount proposed by the appellant for the amount awarded by the trial Judge. The orders of the Court should be: 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. 9 YOUNG CJ in EQ: I agree with Sheller JA. 10 GZELL J: I agree with Sheller JA. ********** Last Modified: 11/03/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.