NAJDOVSKI v CRNOJLOVIC [2008] NSWCA 175

Reported Decision: 72 NSWLR 728

New South Wales Court of Appeal

CITATION: NAJDOVSKI v CRNOJLOVIC [2008] NSWCA 175

HEARING DATE(S): 29 April 2008

JUDGMENT DATE: 1 August 2008

JUDGMENT OF: Allsop P at 1; Basten JA at 5; Windeyer J at 103

1. Allow the appeal with respect to the assessment of damages and set aside the judgment given on 9 June 2006 in the District Court.

2. Direct the parties to confer with a view to agreeing a figure, or, absent agreement, to provide brief submissions within 28 days as to: DECISION: (a) the amount of the substituted judgment, calculated in accordance with this judgment and on the basis that it will take effect from the date of judgment of the trial judge, namely 9 June 2006; (b) any special order in relation to the basis of assessment of costs.

3. Order the respondents to pay the appellant's costs of the appeal.

CATCHWORDS: APPEAL – appeal before two judges – matter of legal principle identified – rehearing of appeal – Supreme Court Act 1970 (NSW) s 46A - APPEAL – appeal from District Court on adequacy of damages – right of appeal – jurisdiction of the Court of Appeal – whether Court of Appeal should assess damages for itself – inadequacy of reasons of trial judge – failure to consider relevant and material evidence – Civil Procedure Act 2005 (NSW) s 56 – District Court Act 1973 (NSW) s 127 – Supreme Court Act 1970 (NSW) ss 75A, 105, 107 - DAMAGES – assessment flowing from motor vehicle accident – challenge to adequacy of damages – fair and proper assessment of appellant's incapacity and disabilities – past and future economic loss – superannuation entitlements – past and future attendant care services – Civil Liability Act 2002 (NSW) ss 3B(2), 15C – Motor Accidents Compensation Act 1999 (NSW) ss 126, 128 – Superannuation Guarantee (Administration) Act 1992 (Cth) - SUPERANNUATION – calculation of lost superannuation entitlements – construction of s 15C of the Civil Liability Act 2002 (NSW) – purposive interpretation – literal interpretation – Civil Liability Act 2002 (NSW) s 15C – Interpretation Act 1987 (NSW) ss 33, 34 – Superannuation Guarantee (Administration) Act 1992 (Cth)