HARPER v BANGALOW MOTORS PTY LTD [1990] NSWCA 85

HARPER v BANGALOW MOTORS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA 8 June 1990, 24 July 1990 [1990] NSWCA 85

Appeal — damages — review of — proper approach of appellate court — discussion by Mahoney and Clarke JJA of the principles involved in an appellate court interfering with, and recalculating an assessment of damages. Moran vy McMahon (1985) 3 NSWLR 700 applied. DAMAGES — motor vehicle injuries — malunited fracture to left femur in previously active woman aged 24 — calculation of general damages — held: (1) (allowing appeal from Loveday J) (per Kirby P, Mahoney and Clarke JJA) The trial judge's award for general damages was manifestly inadequate given that the assessment of compensation for impairment of earning capacity from the date of trial proceeded upon the basis that although the appellant would be able to exercise residual earning capacity she would do so only with difficulty; (2) (per Mahoney and Clarke JJA; Kirby P dissenting) No error was shown in the trial judge's assessment of loss of earning capacity; (3) (per Clarke and Mahoney JJA; Kirby P contra) Upon a recalculation, general damages increased from $60,000 to $80,000 and judgment including interest increased accordingly. Kirby P would have increased general damages to $75,000.

ANTI-DISCRIMINATION — grounds of sex — female plaintiffs in personal injury claims — severe orthopaedic injury interferes in return to preinjury heavy physical work — retirement from work force for pregnancy — probable duration of (observations by Kirby P on) need to avoid unfairness to female plaintiffs in economic social circumstances today by presuming prolonged removal from the workforce following pregnancy. Burden v Rath (1986) Aust Torts Reports 80-050 applied.

Kirby P The appellant was injured in a motor vehicle accident which occurred on the Icely Road near Orange, New South Wales, on 9 September 1980. She was the passenger in the front seat of a vehicle which left the road and collided with nearby guide posts. At the trial, the respondents admitted liability to the appellant in negligence. The assessment of the appellant's entitlement to damages came before Loveday J in the Supreme Court.