Webster v Richards [2006] NSWCA 381

New South Wales Court of Appeal

CITATION: Webster v Richards [2006] NSWCA 381

HEARING DATE(S): 29 September 2006

JUDGMENT DATE: 21 December 2006

JUDGMENT OF: Santow JA at 1; Basten JA at 56

DECISION: 1. Dismiss the appeal. ; 2. If costs are not agreed, direct ; (a) the respondent to file her submissions as to the costs of the appeal by 16 January 2007; ; (b) the appellant to file her submissions in response by 23 January 2007.

CATCHWORDS: DAMAGES – whether excessive – credibility of plaintiff – proof of pre-existing condition.

LEGISLATION CITED: Motor Accidents Compensation Act 1999 (NSW)

CASES CITED: Jones v Dunkel (1959) 101 CLR 298 Watts v Rake (1960) 108 CLR 158

PARTIES: Antoinette WEBSTER (Appellant) Carolyn RICHARDS (Respondent)

FILE NUMBER(S): CA 40779/05

COUNSEL: B J GROSS QC/ H W H BAUER (Appellant) K P REWELL SC/ M A CLEARY (Respondent)

SOLICITORS: McMahons National Lawyers (Appellant) Keddies Solicitors (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1051/04

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION: 2 August 2005

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40779/05 DC 1051/04

SANTOW JA BASTEN JA

21 DECEMBER 2006 Antoinette WEBSTER v Carolyn RICHARDS Judgment 1 SANTOW JA: INTRODUCTION This appeal solely concerns whether damages awarded for injuries sustained in a motor vehicle accident were excessive. The principal issue is whether damage suffered by the respondent to her neck, and the consequences thereof, were properly attributable to the motor vehicle accident in which the appellant admitted liability, or whether such injuries were derived solely from a pre-existing condition. The other issues on damages are set out below. 2 The appellant places particular importance on the fact that some 15 months before the occurrence of the car accident (6 February 2000), the respondent was referred to Royal North Shore Hospital for an MRI scan and that this was an event which she said in evidence she did not recall. That answer was said to affect her credibility in that: (a) it was suggested that an event of that sort would not be overlooked or forgotten, thus casting doubt on her evidence on this and other matters, and (b) the respondent must be taken to have given an incomplete account of her medical history both to her own experts and to the appellant's expert, Dr Jones, in not disclosing that earlier MRI scan. 3 The appeal also challenges the award for past and future economic loss. This is insofar as it was calculated by reference to her ability to have established a private practice in relationship counselling whereby she would be occupied some 40 hours per week and be remunerated at $100 per hour. 4 There is also a challenge to a discount made to the figure for future economic loss of 20%. It was said by the appellant to be inadequate, based on the respondent's husband being considerably older than she was and having suffered ill health. The appellant submitted that the respondent might be expected to limit her working hours to care for her husband at some time in the future, justifying a larger discount. 5 Finally, there is a challenge to the figure allowed for past and future domestic assistance. It was said to constitute an excessive allowance and said to fail adequately to take into account the prospect that, even if the accident had not occurred, the respondent would have both needed and obtained additional paid or voluntary assistance.