Adam Troy v Aldo Salucci

[2002] NSWCA 43

CITATION:	Adam Troy v Aldo Salucci [2002] NSWCA 43
FILE NUMBER(S):	CA 40645/01
HEARING DATE(S):	21 February 2002
JUDGMENT DATE:	21 February 2002
PARTIES :	Adam Troy (Claimant) v Aldo Salucci (Opponent)
JUDGMENT OF:	Stein JA at 1; Ipp AJA at 10; Palmer J at 11

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 3744/99
LOWER COURT JUDICIAL OFFICER :	Moore DCJ

COUNSEL:	R Bartlett SC (Claimant) R C Tonner/B A Batchelor (Opponent)
SOLICITORS:	Abbott Tout Solicitors (Claimant) Robert Napoli & Co Solicitors (Opponent)
CATCHWORDS:	MOTOR ACCIDENT - extension of time - application for leave to appeal - quantum damages - non economic loss - s 79A Motor Accidents Act - ND
LEGISLATION CITED:	Motor Accidents Act 1988 (NSW), s 79A
CASES CITED:	n/a
DECISION:	Summons for Leave to Appeal dismissed with costs

CA 40645/01

STEIN JA
IPP AJA
PALMER J

Thursday, 21 February 2002

Adam TROY v ALDO SALUCCI

Judgment

1 STEIN JA: The Court is in a position to give judgment on the application for leave to appeal. I will give the first judgment of the Court.

2 By summons the claimant seeks two orders. The first is to extend the time for filing an ordinary summons for leave to appeal, and the second order is that leave to appeal be granted from a judgment of Judge Moore in the District Court concerning his determination of non economic loss in favour of the opponent in the sum of $93,500.

3 The question of whether or not time should be extended has not been agitated this morning, and while there may be a real question of whether or not time should be extended, I will put that to one side because of the view I take on the application for leave to appeal.

4 The claimant submits that his Honour’s decision relating to the assessment of non economic loss should be set aside as being excessive and outside the range for the particular injuries suffered by the claimant.

5 It is submitted that his Honour went outside s 79A of the Motor Accidents Act in making the assessment that he did and, bearing in mind the nature of the claimant’s injuries, that the claimant’s non economic loss should be assessed at 33% of the most extreme case.

6 Self-evidently, his Honour’s decision on the issue was a discretionary judgment. Senior counsel for the claimant, in submitting that his Honour’s assessment was manifestly excessive, suggests that 18 to 20% would have been appropriate and with these perhaps being a wider range of 16 to 22% of most extreme case. This submission, of course, highlights the discretionary nature of the judgment which is involved.

7 A reading of his Honour’s judgment shows that he assessed the relevant evidence in coming to a conclusion. It seems to me that it cannot be said that if leave is granted and the Court proceeds to hear the appeal, there is any real likelihood of the claimant succeeding because the finding of his Honour appears to have been open to make on the evidence. That is not to say that I would have come to the same conclusion as to the percentage, and some judges might conclude that it was a little on the high side, but it was an exercise of discretion which does not appear to have miscarried in any way.

8 Furthermore, there does not appear to be any issue of principle involved in the appeal. An attempt was made to argue that his Honour’s judgment was outside the parameters of s 79A of the Act. But when one reflects on the provision, no point of legal principle is involved. Moreover, there is no precedent as such in his Honour’s decision. It was a decision on the facts of the particular case before him.

9 In my view, therefore, the summons for leave to appeal should be refused and dismissed.

10 IPP AJA: I agree.

11 PALMER J: I agree also.

12 STEIN JA: Accordingly, the summons for leave to appeal is refused. The order of the Court is the summons for leave to appeal is dismissed with costs.

oOo