Mimica v Multiplex Constructions Pty Ltd

[2005] NSWCA 138

CITATION:	Mimica v Multiplex Constructions Pty Ltd [2005] NSWCA 138
HEARING DATE(S):	4 February 2005
JUDGMENT DATE:	3 May 2005
JUDGMENT OF:	Mason P at 1; Handley JA at 67; McColl JA at 68
DECISION:	Appeal dismissed with costs

CATCHWORDS:	NEGLIGENCE - appeal - no question of principle - ND
LEGISLATION CITED:	Motor Accidents Act 1988
CASES CITED:	Coulton v Holcombe (1986) 162 CLR 1 Fox v Percy (2003) 214 CLR 118 Rosenberg v Percival (2001) 205 CLR 343
PARTIES:	Ivan Mimica (Appellant) Multiplex Constructions Pty Ltd (Respondent)
FILE NUMBER(S):	CA 40585/03
COUNSEL:	M J Cranitch SC/A G Jamieson (Appellant) D B McGovern SC/S P W Glascott (Respondent)
SOLICITORS:	Carters Law Firm (Appellant) Phillips Fox (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 734/00
LOWER COURT JUDICIAL OFFICER:	Gamble ADCJ

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40585/03

MASON P
HANDLEY JA
McCOLL JA

3 MAY 2005
MIMICA v MULTIPLEX CONSTRUCTIONS PTY LTD
CATCHWORDS

NEGLIGENCE – appeal – no question of principle

FACTS


The appellant sued the respondent in the District Court for damages. While working at a construction site, the appellant was struck by a forklift while walking up a ramp. The District Court judge awarded damages for past economic loss, but dismissed his claim for continuing economic loss and non-economic loss.

The appellant appealed alleging that the judge failed to give sufficient reasons. He also sought leave to enlarge the grounds of appeal, alleging that the judge failed to consider the psychiatric evidence and evidence regarding the appellant’s cervical injuries. HELD : (1) Leave to amend the grounds of appeal granted; (2) The judge adequately considered the evidence and gave sufficient reasons for her findings.

ORDERS


Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40585/03

MASON P
HANDLEY JA
McCOLL JA

3 MAY 2005
MIMICA v MULTIPLEX CONSTRUCTIONS PTY LTD
JUDGMENT

1 MASON P : The appellant is dissatisfied with the damages he was awarded in the District Court. In the circumstances, he seeks a new trial limited to damages.

2 The trial judge (Gamble ADCJ) found that the appellant was injured in consequence of the respondent’s negligence.

3 It is now common ground that the judge was obliged to assess damages by reference to Pt 6 of the Motor Accidents Act 1988 , as she did. Accordingly, grounds 1 and 2 of the original notice of appeal are no longer pressed.

4 The damages awarded were $32,786.65, a sum that included $30,000 for past economic loss. The judge rejected the claim for continuing economic loss. She also dismissed the claim for damages for non-economic loss, holding that the appellant had failed to establish that his ability to lead a normal life had been or was in the near future likely to be significantly impaired for a continuous period of not less than 12 months by the injury suffered in the accident (cf s79A(3)).

5 The original notice of appeal makes general…