QUIST v GARDETT [1988] NSWCA 123

QUIST v GARDETT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, MAHONEY and MCHUGH JJA

14 November 1988, 25 November 1988

[1988] NSWCA 123

DAMAGES — quantum — injury to arm and shoulder — plaintiff — born 1963

at a considerable employment disadvantage because of disability — $35,000 for future economic loss — award for future economic loss doubled — no question of principle.

Hope JA I agree with McHugh JA.

Mahoney JA I am in agreement with the statement of the facts set forth in the judgment of McHugh JA. I am also in agreement with his Honour's formulation of the issues. As his Honour has indicated, unless the amount awarded in respect of loss of economic capacity for the future is appealably low, it is not proper for this Court to intervene.

In quantifying the plaintiff's loss of economic capacity, his Honour was required to form a judgment, to the extent that a judgment can be formed in respect of such matters, as to the extent to which, having regard to his disabilities, the plaintiff would be able to obtain and retain employment in the future. There are two aspects of this: what work he would be able to do; and whether he would be able to secure and retain work that he could do.

It was open to the learned trial judge to conclude that there was a comparatively wide range of work, albeit at a level requiring basic skills, which the plaintiff could do. The medical evidence provided a basis for a conclusion of this kind. The evidence given by individual witnesses called by the plaintiff as to his work experience since the accident might have supported the conclusion that the range of work the plaintiff could do was less than some at least of the doctors had suggested. But the assessment of that evidence and the evidence of the doctors was essentially for the learned judge. It was a matter in which his assessment of the plaintiff and the witnesses he called and their acceptability would, I believe, have played a significant part. I do not think that this Court can properly interfere with that assessment.