EDWARD MIZZI v MURGATROYD NOLA JOAN MIZZI v MURGATROYD [1989] NSWCA 145

EDWARD MIZZI vy MURGATROYD NOLA JOAN MIZZI_ v MURGATROYD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, Hope and PRIESTLEY JJA 10 March 1989, 10 March 1989 [1989] NSWCA 145

DAMAGES — ADEQUACY — IMPAIRMENT OF EARNING CAPACITY — NO QUESTION OF PRINCIPLE

Clarke JA There are two appeals before the court brought, respectively, by a husband and wife in respect of injuries that they received in a motor vehicle accident on 14 February 1982.

On that occasion the male appellant was driving a vehicle in Chittaway Road, Ourimbah with his wife as a passenger when it was involved in a head-on collision. Liability was admitted and the trial judge was concerned only to assess the damages. It is I think convenient to deal with the appeals separately, although it must be recognised that there is a degree of inter-relation between the claims. I will deal initially with the appeal brought by Mr Mizzi.

His Honour was concerned to consider a complex claim that involved compensation in respect of past.and future general damages, past and future economic loss and past and future out-of-pocket expenses. All of Mr Mizzi's claims for economic loss were rejected. The appellant has before this court accepted the finding that he had failed to establish economic loss in the past. Counsel for the appellant also accepted that his Honour was not in error when he declined to accept one basis upon which the claim for economic loss in the future was put. That was a claim for a specific type of loss reflecting consideration of the appellant's business records.

Counsel does, however, challenge his Honour's conclusion that the appellant had not made out a case for compensation for some impairment of his earning capacity. The way the case was put before us was that his Honour's findings as to physical disability necessarily should have led to a conclusion that there had been some impairment of earning capacity. This, it was recognised, could not be measured by reference to weekly allowances or tables. Rather, it was said that the appellant had shown an entitlement to compensation to cushion him from the chance of loss in the future or as a form of insurance against loss in the future.