Peric-Davies v Mazdo - [2004] NSWCA 20

CITATION: Peric-Davies v Mazdo [2004] NSWCA 20

HEARING DATE(S): 16 February 2004

JUDGMENT DATE:
16 February 2004

JUDGMENT OF: Giles JA at 1; Hodgson JA at 22; Bell J at 29

DECISION: Appeal allowed. Verdict and judgment for the defendant and order for costs made below set aside. Remit the proceedings to the District Court for a new trial on the assessment of damages. The respondent pay the appellant's costs of the appeal. The costs of the first trial abide the result of the new trial.

CATCHWORDS: Personal injuries - finding thresholds under Motor Accidents Act not reached - no finding as to any lesser extent of injury entitling recovery of past economic loss and out-of-pocket expenditure - if a finding, no reasons for it - appealable error - appeal court unable to assess the damages - new trial as to damages generally.

CASES CITED: Arian v Nguyen (2001) 33 MVA 37.

PARTIES :
Iva Peric-Davies - Appellant
Sankhairi Mazdo - Respondent

FILE NUMBER(S): CA 40748/02

COUNSEL: P Webb QC & D A Allen - Appellant
P Deakin QC & J Sewell - Respondent

SOLICITORS: Colin Daley Quinn, Kogarah - Appellant
Vandervords - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 8942/00

LOWER COURT
JUDICIAL OFFICER : Rein DCJ

CA 40748/02
DC 8942/00

GILES JA
HODGSON JA
BELL J
16 February 2004

PERIC-DAVIES v MAZDO

Judgment

1 GILES JA: This is an appeal from a verdict and judgment for the defendant in proceedings in the District Court arising out of a motor vehicle accident on 26 July 1998. The defendant admitted liability, and the judge was concerned only with the assessment of damages.

2 The plaintiff was a passenger in the front seat of a car hit from behind by a car driven by the defendant. She claimed fairly extensive injuries and sequelae, summarised by the judge:

“3. The Plaintiff claims that she suffered a ‘flexion/extension injury to the cervical spine’, soft tissue injury to the cervical spine, injury to the lower zygapophyseal joints, muscular ligamentous injury to the left shoulder, inter-scapular area and thoracic spine, as well as shock and sequelae. The sequelae included, it was claimed, psychological disorder, suicidal ideation and an attempt at suicide.”

3 The judge was favoured with a bundle of medical reports tendered on behalf of the plaintiff and a bundle of medical reports tendered on behalf of the defendant, all admitted without objection and without any of the authors of the reports required for cross-examination. The reports provided a spectrum of opinions, some supportive of the extensive injuries and sequelae alleged by the plaintiff and others completely to the contrary. It was of course particularly difficult, in the absence of cross-examination, for the judge to obtain the assistance which might have been hoped for from the medical reports in determining the effects of the accident upon the plaintiff.

4 As the judge said, the medical reports which favoured the plaintiff’s case provided evidence supporting her suffering pain and then depression or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Peric-Davies v Mazdo

Details

AGLC: Peric-Davies v Mazdo [2004] NSWCA 20
Case: [2004] NSWCA 20
Decision Date: 16 February 2004

CaseChat Overview and Summary

The appeal concerned a personal injury claim brought by the appellant, Peric-Davies, against the respondent, Mazdo, under the *Motor Accidents Act*. The primary dispute revolved around whether the appellant had met the threshold requirements for certain types of damages under the Act, specifically concerning economic loss and out-of-pocket expenses. The matter was heard on appeal before Giles and Hodgson JJA, and Bell J.

The central legal issue before the appeal court was whether the primary judge had made an appealable error in their findings regarding the appellant's injuries and entitlement to damages. Specifically, the court had to determine if the primary judge had failed to make necessary findings as to the extent of the appellant's injuries, which would have entitled them to recover past economic loss and out-of-pocket expenditure, and if such findings were made, whether adequate reasons were provided for them.

The appeal court found that the primary judge had not made sufficient findings to enable the assessment of damages. Without clear findings on the extent of the appellant's injuries and the consequent impact on their capacity to earn income and incur expenses, the appeal court was unable to assess the damages themselves. Consequently, the court allowed the appeal, setting aside the original verdict and judgment for the defendant, and ordered a new trial in the District Court solely for the assessment of damages. The costs of the appeal were awarded to the appellant, with the costs of the first trial to abide the outcome of the new trial.

Orders

Orders of the court

Appeal allowed. Verdict and judgment for the defendant and order for costs made below set aside. Remit the proceedings to the District Court for a new trial on the assessment of damages. The respondent pay the appellant's costs of the appeal. The costs of the first trial abide the result of the new trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Peric-Davies v Mazdo [2004] NSWCA 20
HEARING DATE(S):	16 February 2004
JUDGMENT DATE:	16 February 2004
JUDGMENT OF:	Giles JA at 1; Hodgson JA at 22; Bell J at 29
DECISION:	Appeal allowed. Verdict and judgment for the defendant and order for costs made below set aside. Remit the proceedings to the District Court for a new trial on the assessment of damages. The respondent pay the appellant's costs of the appeal. The costs of the first trial abide the result of the new trial.
CATCHWORDS:	Personal injuries - finding thresholds under Motor Accidents Act not reached - no finding as to any lesser extent of injury entitling recovery of past economic loss and out-of-pocket expenditure - if a finding, no reasons for it - appealable error - appeal court unable to assess the damages - new trial as to damages generally.
CASES CITED:	Arian v Nguyen (2001) 33 MVA 37.
PARTIES :	Iva Peric-Davies - Appellant Sankhairi Mazdo - Respondent
FILE NUMBER(S):	CA 40748/02
COUNSEL:	P Webb QC & D A Allen - Appellant P Deakin QC & J Sewell - Respondent
SOLICITORS:	Colin Daley Quinn, Kogarah - Appellant Vandervords - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 8942/00
LOWER COURT JUDICIAL OFFICER :	Rein DCJ