Mallah v Keti

[1999] NSWCA 100

Reported Decision: 46 NSWLR 291

New South Wales

Court of Appeal

CITATION:	MALLAH v KETI [1999] NSWCA 100
FILE NUMBER(S):	CA 40233/98
HEARING DATE(S):	1 April 1999
JUDGMENT DATE:	20 April 1999
PARTIES :	Wafa Mallah - A Iona Keti - R
JUDGMENT OF:	Sheller JA at 1; Fitzgerald JA at 38

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	7616/96
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ

COUNSEL:	R W Tregenza - A M W Williams - R
SOLICITORS:	Kesby Zaccca & Co - A Henry Davis York - R
CATCHWORDS:	NEGLIGENCE; DAMAGES; INADEQUACY OF VERDICT; OPERATION OF S79A OF MOTOR ACCIDENTS ACT 1988
ACTS CITED:	MOTOR ACCIDENTS ACT 1988
DECISION:	APPEAL ALLOWED

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40233/98
DC 7617/96

SHELLER JA
FITZGERALD JA

MALLAH v KETI

The appellant was awarded a verdict of $6,572.70 by Sidis DCJ for damage suffered as a result of a motor vehicle accident which was caused by the respondent’s negligence. This sum comprised $2,500 for economic loss and $4,072.70 for past out of pocket expenses. The appellant sought leave to appeal on the basis that the verdict was inadequate.

The appellant submitted that the trial Judge misunderstood and misstated the test required by s79A of the Motor Accidents Act 1988 to be followed in assessing damages for non-economic loss, which were claimed to be pain, suffering and loss of amenities of life. It was submitted that the trial Judge assessed only the claimant’s condition as at the time of trial in March 1998 and excluded pain and suffering between the date of the accident on 25 April 1996 and the time of the hearing.

Section 79A contained the steps to be followed in determining what amount, if any, of damages are to be awarded for non-economic loss. Subsection (3) provided that no damages are to be awarded unless the person’s ability to lead a normal life has been, or in the near future is likely to be, significantly impaired for a continuous period of not less than twelve months by the injury suffered in the accident. Subsection (4) provided that no damages may be awarded unless the severity of the non-economic loss is at least 15 percent of a most extreme case. Subsection (6) contained a table quantifying the damages to be paid, requiring a determination of what percentage of a most extreme case the severity of the pain and suffering and loss of amenity of life in the present case was.

The appellant submitted that the trial Judge rolled up the threshold test in subsection (3) with the calculation of the degree of severity of non-economic loss required under subsection (6), leading to an incorrect calculation of damages.

Held:
By Sheller JA, Fitzgerald JA agreeing:
(1) Section 79A contains a three step test to be followed in determining what amount, if any, of damages are to be awarded for non-economic loss. The first step is the threshold question contained in subsection (3).…