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: "T have already said that I regard the handicaps which the plaintiff has as being likely to he productive of financial loss. I have to take into account that such loss will not commence to accrue until the end of the plaintiff's schooling which is likely to be two to four years hence. Using three per cent tables I can observe that upon a deferral for three years a loss of $60 per week over the ensuing 47 years of the plaintiff's notional working life to the age of 65 a capital sum of approximately $72,750 would represent the value of that loss. I am not, of course, dealing with actual earnings or loss and I have borne in mind the presumed excess of adverse over favourable vicissitudes. I am seeking in this exercise to satisfy myself of what any lump sum that I award represents in terms of economic endowment. I have concluded that a sum of $70,000 is appropriate to be included in the plaintiff's damages for interference with economic opportunity and capacity". 2 UNREPORTED JUDGMENTS Earlier in his judgment Grove J said that the economic effect of the accident would be "grave". This appears to be a correct assessment having regard to the fact that the appellant was not, as it seems, a person of high school achievement. He would therefore have to depend very much upon his physical fitness for his future employment. The amount which his Honour allowed represented approximately $60 per weeks over an estimated working life of forty-seven years. It was discounted by the appropriate tables. This brought in a sum of $72,750 which his Honour reduced to $70,000. It is the appropriateness of this approach to the appellant's loss of economic capacity which would have been the focus of the challenge on the appeal. The settlement which is proposed, requires the approval of the Court under the Damages (Infants and Persons of Unsound Mind) Act 1929, 54. The settlement increases the judgment by $40,000. This sum represents the equivalent of a calculation of approximately $110 per week over the ensuing working life of the appellant. I do not consider that liability would have been seriously in issue before Grove J or before this Court. Accordingly I must approach the proposed settlement with this fact in mind. The only issue in the appeal was the quantification of the appellant's damages. But to succeed the appellant would have had to show that there was appealable error in the award which Grove J entered. Counsel appearing today for the appellant did not represent him at the trial. He says that he considers the amount of the settlement which is proposed for approval to be low. However, he informed me that the appellant and the next friend are inclined to accept it. The issue which is before me is whether I should approve of the settlement. I am dealing with the matter under s46 of the Supreme Court Act 1970. It is difficult, speculating on the outcome of the appeal, to judge that outcome having regard to the unpredictable elements which exist in the assessment of damages. These elements of unpredictability themselves provide a hurdle for an appellant who must demonstrate error in order to secure a re-assessment. Personal injury damages are not normative in the sense that there is any ready table by which allowance can be made for eg loss of economic capacity. On the other hand, that component of a judgment is the component which most readily lends itself to calculation by reference to tables and to commonsense estimations of the impact of so serious an injury on a person of limited intellectual skills such as the appellant. Like counsel for the appellant I have some misgivings about the amount which is proposed. However, I am not inclined to disturb the proposed settlement. I take this course because of the age of the appellant and the wish which he has expressed, together with his father, that the settlement should be approved. I believe that in our society respect should be paid to the wishes of a person of the age of seventeen years. He is on the brink of legal adulthood. I also take into account the unpredictability of the outcome of an appeal and the significant increase in the judgment which has been procured by the appeal. I have not seen the appellant or his father, but acting on the assurances which counsel for the appellant has given me, will approve the settlement. The orders that are therefore made are, by consent, in accordance with the short minutes of order which have been handed to me and which are signed by counsel for both parties, par (1), par (2), par (3) and par (4). The short minutes will be placed with the papers. URJ DUNNE v OWENS (Kirby P) Counsel for the Appellant: JW Ingram Solicitors for the Appellant: IR Bell and Co Counsel for the Respondent: LD Waddy QC and HJ Mater Solicitors for the Respondent: JA Gill and AE Dunne