Joukhador v Donnelly

In *Joukhador v Donnelly*, heard in the Court of Appeal of New South Wales, the appeal concerned the assessment of damages arising from a motor vehicle accident. The appellant, Ms Joukhador, sought to challenge the quantum of damages awarded to the respondent, Mr Donnelly, for past and future economic loss and non-economic loss.

The central legal issues before the Court of Appeal were whether the primary judge had erred in their assessment of the respondent's past and future economic loss, and whether the award for non-economic loss was appropriate. A key aspect of the appeal involved the application of the correct legal test for assessing future losses, specifically the distinction between the test of probabilities and the test of possibilities.

The Court of Appeal found that the primary judge had applied an incorrect test when assessing the respondent's future economic loss. Instead of applying the test of probabilities, which requires a loss to be more likely than not to occur, the primary judge had considered possibilities. This error led to an overestimation of the respondent's future economic loss. The Court also reviewed the assessment of non-economic loss, finding no error in that regard.

Consequently, the appeal was allowed, and the matter was remitted to the primary court for redetermination of the damages for past and future economic loss in accordance with the correct legal principles.