McAneney v Rafaraci

CITATION:	McAneney v Rafaraci [2001] NSWCA 356
FILE NUMBER(S):	CA 40658/00
HEARING DATE(S):	28 September 2001
JUDGMENT DATE:	28 September 2001
PARTIES :	First Appellant: Mark Paul McAneney Second Appellant: Eugenia Magripi Respondent: Giovanna Rafaraci
JUDGMENT OF:	Beazley JA at 1; Davies AJA at 10

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	10057/97
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

COUNSEL:	Appellants: L M Morris QC/ W Fitzsimmons Respondent: G B Hall QC/ S Norton SC
SOLICITORS:	Appellants: Windeyer Dibbs Respondents: L J Sharpe & Co
CATCHWORDS:	Motor vehicle accident - Assessment of damages - No error
DECISION:	Appeal dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40658/00
DC 10057/97

BEAZLEY JA

DAVIES AJA

Friday, 28 September 2001

Mark Paul McANENEY & ANOR v Giovanna RAFARACI
JUDGMENT

: The respondent sustained an injury to her knee in a motor vehicle accident on 25 May 1996. She brought proceedings against the appellants claiming damages for her injury. Breach of duty was admitted by the appellants prior to trial and the matter proceeded before his Honour Judge Ian Dodd for assessment of damages only.

2 His Honour accepted that the respondent had suffered the injury to her knee as alleged and that up to the date of hearing continued to have on-going problems with it. He found:

“She has pain in the knee on and off and especially if she walks too much. Her employer allows her to sit or stand as she wishes. She has to be careful going up or down stairs as she gets a lot of pain. She tries not to walk on rough ground. The knee cracks if she bends. She cannot kneel, or if she does she needs assistance to get up. She cannot squat. She said her knee seems to be getting worse.”

3 His Honour assessed a non-economic loss of 29% of a most serious case. That assessment is challenged but no further submissions were advanced in respect of that ground of appeal. I am of the opinion that his Honour’s assessment was within an appropriate discretionary range and I would reject that ground of appeal.

4 The second challenge to his Honour’s assessment of damages is in relation to future economic loss. At the time of the accident the respondent was working as a kitchen hand with Ansett Catering, having commenced employment in 1989. She continued working for Ansett up to the date of hearing having had a short period of time off work after the accident and initially having returned to work on light duties. The claim made by the respondent in respect of future economic loss encompassed a claim for the loss of potential overtime, which she said would have been available to her and which she would have worked but for the injury to her knee, and for general interference with her economic capacity.

5 There was some evidence in respect of the claim for loss of potential overtime.…