KEMP v ALWAY [2003] NSWCA 123

New South Wales Court of Appeal

CITATION : KEMP v ALWAY [2003] NSWCA 123 HEARING DATE(S) : 7 May 2003 JUDGMENT DATE : 7 May 2003

JUDGMENT OF : Mason P at 1; Tobias JA at 50 DECISION : Appeal allowed.

CATCHWORDS : Motor Vehicle Accident - Injury - Respondent suffering ongoing symptoms - damages - Non-economic loss - assessment of impairment at 30% of a most severe case - whether outside the bounds of sound discretionary judgment - Future out-of-pocket expenses - whether award too generous - Future economic loss - challenge to cushion award - s70A Motor Accidents Act - primary finding of 25% likelihood of diminished future economic capacity - whether finding supported by evidence PARTIES : Christian Phillip KEMP v Brooke ALWAY FILE NUMBER(S) : CA 40485/02 COUNSEL : Appellant: A G Campbell SC/ T Bland Respondent: G Smith SOLICITORS : Appellant: Hunt & Hunt Respondent: Kevin Byrnes

LOWER COURT District Court - Newcastle JURISDICTION : LOWER COURT DC 118/01 FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40485/02

MASON P TOBIAS JA

Wednesday 7 May 2003

KEMP v ALWAY JUDGMENT 1 MASON P: The respondent was a front seat passenger in a car being driven through Wauchope. The appellant was driving a four-wheel-drive vehicle with bull bar which came out of the driveway and struck the vehicle in which the respondent was travelling on the passenger side. 2 The respondent was wearing a seat belt, but the force of the impact threw her forward so that her knees impacted with the dashboard. She was then thrown backwards and to the side and her left shoulder hit the pillar at the side of the car. She was winded by the force of the impact. Her right breast was bruised by the seat belt. She was taken by ambulance to hospital where she was x-rayed and kept under observation for four hours before being taken home. 3 Breach of duty was admitted. 4 Damages were assessed by Judge Sidis at $129,287.35 made up as follows: Past out of pocket expenses (as agreed) $ 6287.34 Future out-of-pocket expenses 20,000.00 Future economic loss 35,000.00 Non-economic loss (30% of a most extreme case) 68,000.00 $129,287.35