FENN v JEWEL FOOD STORES PTY LTD [1989] NSWCA 77

FENN v JEWEL FOOD STORES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS (1) AP, MEAGHER (2) JA AND HOPE (3) AJA 28 August 1989, 28 August 1989

[1989] NSWCA 77

DAMAGES — quantum — observations concerning the relevance of evidence of the state of the labour market for partially incapacitated workers.

Yammine v Kalwy [1979] 2 NSWLR 151, Baird v Roberts [1977] 2 NSWLR 389 at 397, and Dessert v The Commonwealth 13 ALR 437 at 447 referred to.

Samuels JA This is an appeal from an assessment of damages made by Cole J in proceedings in which, although liability was not formally admitted, it was not in contest at the trial.

The plaintiff, as I will call her, the present appellant, was born on 16 May 1962 and was therefore about eighteen when, on 22 August 1980, she sustained the accident which gave rise to the action. She was then working in a supermarket when a pallet of groceries fell on her left foot. She sustained a crush injury without any fracture and for some time it was considered that the pain and discomfort of which she complained was caused by a soft tissue injury, the consequence of that trauma.

The learned judge, in a very careful and detailed judgment, assessed the plaintiff's damages in the total sum, gross of workers' compensation repayments, of $83,492.78, rounded off to $84,000. Of this total he awarded $19,000 for future economic loss, $35,000 for past economic loss and $20,000 for damages for pain and suffering and the like of which he allocated $5,000 to the future.

Despite the care with which his Honour approached the assessment, I am afraid that in my opinion the award cannot stand, and since I think that in the circumstances the remedy must be that of a new trial, I will confine myself only to those facts which are necessary as a context for the conclusions I will express.