DUNNE v OWENS [1988] NSWCA 38

DUNNE v OWENS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 17 October 1988, 17 October 1988 [1988] NSWCA 38

INFANTS — settlement — damages verdict — $70,000 allowed for loss of economic capacity by 17 year old male youth of low educational attainments — settlement of additional $40,000 for loss of economic capacity — represents $110 for rest of working life — youth and father desire settlement — liability not in issue — held: Settlement approved — reference to the respect to be given to the wishes of a youth of 17 and need for appellant to overcome barrier of establishing appealable error in primary judge's award. Damages (Infants and Persons of Unsound Mind) Act 1929 s4. ORDERS Settlement approved and orders made in accordance with short minutes of orders filed.

Kirby P There was listed before the Court today an appeal from a judgment of Grove J. The judgment had been entered in favour of the appellant, Paul John Dunne, in the sum of $200,000, with consequential orders. Mr Dunne is an infant. He was eleven years of age when he was injured. He is now seventeen years of age. He has sued by his tutor, John Joseph Dunne, who is his father.

The injury to the appellant involved the amputation of most of his right forefoot, leaving only the heel. the injury arose out of a motor vehicle incident following which action was commenced against his brother, the driver of the trail bike upon which he was travelling as a passenger, and the Nominal Defendant, who was sued on the ground that the trail bike was uninsured.

Grove J found liability in the Nominal Defendant and the driver of the vehicle on which the appellant was travelling as a passenger. He made up the judgment which he entered against both respondents by totalling a number of components which would not have been seriously disputed in the appeal. One element which would have been the focus of argument in the appeal was the allowance which his Honour had made for interference in economic opportunity and capacity. For this component of the appellant's entitlement his Honour awarded an amount of $70,000. He did so in the following terms: