Kaszubowski v McGuirk

The case of *Kaszubowski v McGuirk* concerned an appeal and cross-appeal regarding damages awarded for personal injury under the *Motor Accidents Act 1988* (NSW). The dispute centred on whether the quantum of damages for past and future care was manifestly excessive, and specifically, whether the cross-appellant's future care needs should have been assessed on a commercial rather than a gratuitous basis. The court also considered whether the trial judge had erred in rejecting certain expert evidence.

The primary legal issues before the Court of Appeal were twofold. Firstly, it had to determine if the award for past and future care was so excessive as to warrant intervention. Secondly, and intrinsically linked to the first, the court was required to decide the appropriate basis for assessing future care needs – specifically, whether the services were to be valued commercially or gratuitously. The admissibility and weight of expert evidence also formed a significant point of contention.

The Court of Appeal ultimately dismissed both the appeal and the cross-appeal. The reasoning, as articulated by Bell JA with whom McColl JA and Hoeben J agreed, indicated that the trial judge's assessment of damages, including the consideration of past and future care, was not manifestly excessive. The court found no error in the rejection of the expert evidence in question, and importantly, upheld the assessment of future care needs on the basis that it was not required to be assessed on a commercial basis in the circumstances of the case. Consequently, the appeal and cross-appeal were dismissed with costs.