Joukhador v Donnelly

[1999] NSWCA 468

CITATION:	Joukhador v Donnelly [1999] NSWCA 468
FILE NUMBER(S):	CA 40633/98
HEARING DATE(S):	22/09/99
JUDGMENT DATE:	17 December 1999
PARTIES :	George Joukhador Neville Donnelly
JUDGMENT OF:	Meagher JA at 1; Beazley JA at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	10183/97
LOWER COURT JUDICIAL OFFICER:	Gibb ADCJ

COUNSEL:	Appellant: B Donovan QC/ C P Locke Respondent: R Tonner/ E Romaniuk
SOLICITORS:	Appellant: L W Williams & Associates Respondent: Moray & Agnew
CATCHWORDS:	Damages; Motor vehicle accident; past and future economic loss; non economic loss; test of probabilities versus test of possibilities
ACTS CITED:	Suitor's Fund Act 1951 (NSW)
CASES CITED:	Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Younie v Martini (unreported, New South Wales Court of Appeal, 21 March 1995)
DECISION:	Appeal allowed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40633/98
DC 10183/97

MEAGHER JA
BEAZLEY JA

Friday, 17 December 1999


George JOUKHADOR v Neville DONNELLY





FACTS

The appellant was injured in a motor vehicle accident in 1993 (the 1993 accident). This was at least the third accident he had been involved in, in the previous seven to eight years. Prior to the 1993 accident, he was diagnosed as suffering from a personality disorder and depression. The trial judge found that in the 1993 accident the appellant sustained fresh injuries as well as aggravating pre-existing injuries. Her Honour assessed for non-economic loss on the basis of twenty-eight per cent of a most extreme case. However, her Honour held that the appellant’s work capacity had not been affected and made no award for past or future economic loss. Her Honour awarded the appellant damages for out-of-pocket (medical) expenses, but disallowed the claim for future out-of-pocket expenses on the basis there was no evidence of the cost of such expenses. She also disallowed the claim for future operative treatment on the basis the appellant was unlikely to undergo such treatment. The appellants submitted that the trial judge erred in failing to make such awards. The appellant further submitted that her Honour applied the wrong test in determining the entitlement to damages. It was submitted her Honour applied a test of probabilities, rather than a test of possibilities.

HELD

per Beazley JA (Meagher JA agreeing)

(i)Her Honour’s finding that the appellant was unlikely to seek work or that his capacity to work had not been impaired with inconsistent with her finding that his non-economic loss should be assessed at twenty-eight per cent of a most serious case and that the appellant still suffered pain that was sometimes incapacitating.

(ii) Her Honour’s finding that the appellant was not entitled to an award of economic loss also failed to have regard to her other finding that the appellant’s rehabilitation was compounded by his pre-existing mental and emotional condition. Her Honour should have considered the effect his pre-existing mental and emotional condition had on his work capacity having regard to his physical injuries…