Roberts v White

[1999] NSWCA 12

CITATION:	ROBERTS v WHITE [1999] NSWCA 12
FILE NUMBER(S):	CA 40780/97
HEARING DATE(S):	18 November; 1998
JUDGMENT DATE:	12 February 1999
PARTIES :	JAMES WILLIAM ROBERTS MARGARET WHITE
JUDGMENT OF:	Spigelman CJ at 1; Mason P at 2; Priestley JA at 52; Meagher JA at 53; Handley JA at 58

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 5543/91
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace DCJ

COUNSEL:	A Shand QC/M T Vesper (Appellant) R Colquhoun/E Wood (Respondent)
SOLICITORS:	M J Raymond (Appellant) Colquhoun & Colquhoun (Respondent)
CATCHWORDS:	Damages; measure of damages in actions for tort; out of pocket expenses; damages for non-economic loss; prospective amendment of legislation; precedent; costs; Motor Accidents Act 1988 s79(1)
ACTS CITED:	Motor Accidents Act 1988 Motor Accidents (Amendment) Act 1993
DECISION:	Appeal allowed in part

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40780/97
DC 5543/91

SPIGELMAN CJ
MASON P
PRIESTLEY JA
MEAGHER JA
HANDLEY JA

Friday 12 February 1999

James William ROBERTS v
Margaret WHITE

JUDGMENT

1 SPIGELMAN CJ: I agree with Mason P.

____________________

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40780/97
DC 5543/91

SPIGELMAN CJ
MASON P
PRIESTLEY JA
MEAGHER JA
HANDLEY JA

Friday 12 February 1999

James William ROBERTS v
Margaret WHITE

JUDGMENT

2 MASON P: The respondent was injured in a motor vehicle accident on 13 November 1989. She was in the course of her employment as a senior police officer when the vehicle which she was driving was struck from behind by the appellant’s vehicle. Liability was not in issue.
3 Three actions were listed for hearing in the District Court before Ainslie-Wallace DCJ on 28 July 1997. There was the assessment of damages in the instant proceedings, and there were proceedings in relation to two later motor vehicle accidents involving the respondent that occurred on 28 March 1990 and 23 May 1990. These two cases were settled at the commencement of the hearing. The damages assessment in the respondent’s action against the appellant proceeded over the next nine days. There was a verdict in the sum of $73,919.50. It had two components, out of pocket expenses of $15,729.50 and damages for non-economic loss awarded in accordance with s79 of the Motor Accidents Act 1988 on the basis of a 27% proportion of severity ($58,190). Each item of damages is challenged in this appeal, which is by leave.
4 The appeal raises one matter of detail and one point of principle.
Out of pocket expenses
5 The matter of detail is a challenge to the assessment of out of pocket expenses. It is submitted that the evidence does not sustain an award exceeding $4,000 for expenses. This challenge should be rejected. The trial appears to have been conducted on the basis that the expenses claimed in an amended statement of particulars were in fact incurred. Not all of these expenses were allowed, and for some there was only a partial allowance. The reasoning, though sparse, contains a finding of a…