HOBELL v LEONARD [1990] NSWCA 95

HOBELL v LEONARD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS J, PRIESTLEY and CLARKE JJA

29 May 1990

[1990] NSWCA 95

DAMAGES — quantum — no question of principle.

Samuels J This appeal from an assessment of damages made in the District Court by Judge Lloyd-Jones is one which, to my mind, is very much on the borderline. We are much indebted to Mr Barry, who has appeared for the appellant, and I am not, in saying that, reciting the litany which is sometimes used in order to alleviate the pangs of defeat. He has produced not only helpful oral argument but some extremely helpful written submissions, which have, however, had the effect in the end of laying out the case in a very clear fashion and leading me to conclude that the assessment is not a wholly erroneous estimate of the plaintiff's damage.

The accident occurred in 1982 and the hearing in March 1989. The learned Judge appears to have accepted the respondent's evidence at its highest, including not only her own complaints but the evidence of her doctors, which was supplied wholly in written form. Indeed, the plaintiff/ respondent was the only witness who gave oral evidence.

From this I think it was open to the learned Judge to find, as he did, on the basis of Dr DG Seaton's reports and those of Dr David Champion, that the plaintiff had a defect traumatically induced in the left shoulder, described by Dr Seaton as levator scapulae syndrome, which produced symptoms of stiffness and pain in the neck radiating to the left shoulder, with weakness in the left arm and hand, and had, in addition, a retropatellar chondritis of both knees, which caused weakness, instability and clicking.

His Honour felt that these conditions were unlikely to improve and I cannot say that that finding was not available on the evidence.

The difficulty in the case, it seems to me, is primarily in working out what the respondent's earning capacity was at the time of the trial and what her likely future employment pattern was. She had worked in various capacities. She was thirty five years old at the trial, a single mother with one child then aged about seven years. She had been a cook and had managed part-time an Indian gourmet restaurant, had taught French, in which she was fluent, and had done some work as a Court Interpreter, although this seems to have been modest in scope, and had done some contract research for the Metropolitan Museum of Art in New York.