EDWARDS v NASH

BEAZLEY JA: I will ask Fitzgerald AJA to give the first judgment.

FITZGERALD AJA: In this matter the appellant was injured in four successive motor vehicle accidents. She sued in respect of the first, second and fourth accidents and settled her proceedings in respect of the fourth accident. As to the first two accidents, she lost in respect of the first and succeeded in respect of the second.

In dealing with the consequences of the second accident for the purpose of assessing the appellant’s damages, the trial judge did not simply compare the appellant’s position before and after that accident but held that some of the consequences of the second accident should be attributed to the first accident and the consequences of the second accident and the appellant’s resultant damages diminished accordingly. His Honour’s approach was based on State Government Insurance Corporation v Oakley (1990) ATR 81 003.

Counsel for the respondent frankly and correctly conceded that Oakley has no application in these circumstances. Indeed, the respondent’s counsel’s primary argument was that the point is so obvious that the trial judge could not have made such a mistake. Regrettably, I think it clear that his Honour did so. It is possible that he overlooked that the case was presented before him on the basis of the appellant’s contention that she was negligently injured in each of the first two accidents and that his rejection of her claim in respect of the first accident significantly altered the approach to be adopted in relation to the second accident. When his Honour decided that her injuries in the first accident were not negligently caused, she was, for the purpose of the consequences of the second accident, a person with disabilities who was negligently injured in that accident.

The respondent’s alternative argument was that the consequences of a motor accident for the purposes of s79 of the Motor Accidents Act 1988 are not to be determined according to the principles of the general law but that consequences of an accident which, in the Oakley sense, can be attributed to a prior traumatic event must be disregarded. Section 79 gives no support to that view. It merely affects the damages recoverable by an injured person for non economic loss when the consequences of a motor accident have been determined according to the common law.

I am, therefore, of the opinion that the trial judge’s approach to the assessment of the appellant’s damages was wrong in principle.

Liability was not really an issue and the only amount which his Honour awarded to the appellant, an amount of $450.20 in medical bills, which clearly resulted from the second accident, although challenged for a period, is no longer an issue. It is also, I think, not an issue that if the conclusions which I have reached are correct there should be a new trial limited to the issue of damages.

In the circumstances, the orders which I would make are as follows: (1) Appeal allowed with costs, including the costs of the application for leave to appeal. (2) The orders made in the proceedings between these parties below should be set aside and in lieu it should be ordered that the costs of the first trial between these parties abide the result of a retrial limited to damages. (3) The matter remitted to the District Court for appellant’s damages against the respondent to be reassessed. (4) The respondent to have a certificate under the Suitor’s Fund Act , if qualified.

BEAZLEY JA: I agree.

STEIN JA: I also agree.

BEAZLEY JA: The orders of the Court are those proposed by Fitzgerald AJA.