GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v O'MEARA [1988] NSWCA 53

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v O'MEARA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, Hope and SAMUELS JJA 24 October 1988, 24 October 1988 [1988] NSWCA 53

Damages — no question of principle — appeal dismissed. ORDER Appeal dismissed with costs.

Hope JA This is an appeal from a decision of Thorley DCJ in two proceedings which were consolidated in which the plaintiff sought damages in respect of the injuries she had suffered in two accidents which occurred on 27 February 1985 and 1 March 1985. His Honour awarded the plaintiff a total sum of $347,965. In its appeal the GIO challenges his Honour's assessment of past economic loss, future economic loss and general damages.

His Honour's judgment was given on 19 August 1987. For past economic loss, his Honour awarded, in respect of a period from the date of the accidents until the hearing, amounts totalling $42,400. His Honour's assessment of future economic loss was $165,900 and of general damages a total of $110,000 of which $60,000 was for the pre-trial period.

As regards economic loss the appellant's submissions point to what are submitted to be errors in law and errors of fact. The principal error which is relied upon relates to future economic loss, and is concerned with his Honour's method of assessment. Instead of adopting the usual method of estimating the number of years for which the plaintiff would have continued to work but for the accident, assessing a weekly loss amount and using the tables to arrive at a present capital sum, his Honour took a weekly figure and made a discount for all the relevant factors by halving the period of years for which he considered the plaintiff would have worked.

The plaintiff was 35 years of age at the time of the trial and had she continued to work until aged 60 she would have worked for 24 years. His Honour discounted for the fact that she had some residual earning capacity, that there would have been some temporal limit to her working span, and for the ordinary exigencies of life, by reducing the 24 years to 12 years. Using the five per cent tables and average earnings of $350 net per week, his Honour arrived at the figure of $165,900.