The appellant also appealed against the award of damages made by the trial Judge in relation to the first accident, claiming -

(i) that the trial Judge was wrong in finding that the appellant had failed to mitigate his damages;

(ii) that the award of $68,220 for past economic loss was too low;

(iii) that the trial Judge's assessment of loss of future earning capacity was too low;

(iv) that the trial Judge's assessment of general damages was inadequate; and

(v) that the award of interest on past economic loss had been erroneously calculated.

The appellant failed in relation to items (i), (iii) and (iv). He succeeded in relation to item (ii), insofar as this Court held that there should have been no allowance made by the trial Judge for contingencies in relation to the appellant's past economic loss. As a result, the award under this heading was increased by the sum of $7,580. In relation to item (v), the first respondent accepted that the method of calculation of interest on the past economic loss had been erroneous and he conceded liability for an additional amount of $11,597.

Mr Allan contends that the order in favour of the appellant in relation to the costs of the appeal as to the damages awarded against the first respondent should be limited to the costs of the issue as to past economic loss (item ii). He further contended that there should be no order as to the costs of the first respondent's unsuccessful cross-appeal.

It is obvious that the issue as to the calculation of interest (item v) would not have added to the cost of the appeal. The error was conceded from an early stage and thus it was not necessary to argue the matter before this Court. The appellant lost on three other issues and, in my view, subject to the matter of the costs of the cross-appeal, in the exercise of the court's discretion under O66 r1, it is appropriate to limit the award of costs as indicated by Mr Allan.

It does not necessarily follow that, if an otherwise successful appellant loses on some issues, he or she will not be allowed the full costs of the appeal. Each case must be decided on its own facts - see, generally, Jamal v Secretary, Department of Health (1988) 14 NSWLR 252, at 271-272. In this case, however, the issues on which the appellant lost took up a significant amount of time and he was successful only to the extent of $19,177, of which the sum of $11,597 was conceded.

The costs of the unsuccessful cross-appeal would normally be awarded to the appellant. However, the cross-appeal was bound up with the issue of negligence, the subject of item (i), as to which the appellant was unsuccessful, and with the award of past economic loss, the subject of item (ii), as to which the appellant was only successful to a very limited extent. Having regard to the extent to which the appellant was not successful in his appeal, it would, in my opinion, be reasonable to make no order as to the costs of the cross-appeal. Not doing so will balance out to a large degree the costs incurred by the respondent in resisting the appellant's unsuccessful grounds of appeal.

In the circumstances, the final orders of the court should be as follows -

3. The judgment of the District Court given the 29th day of November 1996 be amended by:

(a) substituting the sum of $116,126 for the sum of $96,949 in paragraph 1 thereof;

(b) deleting paragraphs 2 and 5 thereof and substituting the following: "The first defendant do pay the plaintiff's costs of the action against the first defendant to be taxed";

(c) deleting paragraph 3 thereof and substituting the following: "The first plaintiff have judgment against the second defendant for damages to be assessed";

(d) deleting paragraph 4 thereof and substituting the following: "The second defendant pay the plaintiff's costs of the issue of liability in the action against the second defendant, such costs to be taxed";

4. The assessment of damages between the appellant and the second respondent be remitted to the District Court for hearing before her Honour Judge Yeats and the costs of the assessment be in the cause.

5. The first respondent do pay the appellant's costs of the appeal, limited to the issue of past economic loss, such costs to be taxed.

6. The second respondent do pay the appellant's costs of the appeal with respect to the second respondent, such costs to be taxed.

7. There be no order as to the costs of the cross-appeal.