NOMINAL DEFENDANT v HUNT [1988] NSWCA 105

NOMINAL DEFENDANT v HUNT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, PRESTLEY and MCHuGH JJA 6 May 1988

[1988] NSWCA 105

Damages Quantum — Excessiveness — No question of principle — Appeal dismissed.

ORDERS Appeal dismissed with Costs.

Hope JA In this matter the plaintiff was injured in a motor vehicle accident on 24 December 1979. The action which he brought to recover damages for his injuries was not heard until September 1986 and was heard by his Honour Judge Lloyd-Jones in the District Court. His Honour gave judgment for the plaintiff in the sum of $85,870 made up in this way: past loss of wages $12,746; future economic loss $34,000; general damages $30,000; interest $9,000; and out-of-pocket expenses $124.

The appellant was the second defendant in the proceedings in the District Court, the appeal against the first defendant, the State Rail Authority of New South Wales having been dismissed by consent. In its appeal the Nominal Defendant challenges his Honour's assessment of past and future economic loss and general damages as being excessive.

The plaintiff was born on 22 November 1949 and thus was 30 years of age at the time of the accident and 37 at the time of trial. He fell heavily on his right elbow in the accident and suffered a fracture of the right radial head. He was taken to Sydney Hospital where the fracture was discovered and was conservatively treated. He was then off work from 24 December 1979 to 24 February 1980. During some part of that time he carried his arm in a sling. Thereafter he returned to work as a bus conductor and continued that work for some time in circumstances which I shall describe later in relation to economic damage. At the time of the trial he was still employed in relation to the bus services in an office position The plaintiff of course suffered considerable pain at the time of the fracture and was continuing to suffer pain and associated disability at the time of the trial.