Kessey v Golledge

The parties to this matter were Kessey (the appellant) and Golledge (the respondent). The dispute concerned an appeal against interlocutory orders made by a Master extending time to bring proceedings under the *Motor Accidents Act 1988* (NSW), and an appeal against a single judge's decision dismissing that earlier appeal. Further appeals were also brought against a trial judge's assessment of damages. The appeals were heard by Sheller and Beazley JJA, and Rolfe J.

The court was required to determine several legal issues. These included whether the Master erred in extending time for the respondent to bring proceedings under the *Motor Accidents Act 1988*. The court also had to consider whether the trial judge erred in their assessment of damages, specifically in relation to the application of the principle of *novus actus interveniens* and the amount to be deducted in accordance with the principle established in *Kempsey District Hospital v Thackham*. Finally, the court considered the general principle that parties should be held on appeal to the way in which the case was conducted at first instance.

The court dismissed the appeal against the Master's decision to extend time and the appeal against the single judge's dismissal of that appeal. However, the appeal against the trial judge's assessment of damages was upheld in part. The court reasoned that while the initial assessment of damages was flawed, particularly concerning the deductions, the parties should generally be held to the conduct of the case at first instance. Consequently, the judgment for the respondent was varied from $412,046 to $345,074.25. The appellant was ordered to pay the respondent's costs of each appeal.