MARSH v MOSS [1990] NSWCA 119

MARSH v MOSS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 2 August 1990

[1990] NSWCA 119

Clarke JA This is an appeal from a judgment of his Honour Judge Pain deliveredon 21 October 1988 wherein his Honour awarded a verdict in favour of the appellant in the sum of $128,659.18. The appellant claims that the award is inadequate in a number of respects. On the other hand the respondent has filed a Notice of Contention which concedes certain errors on the part of his Honour in his favour but argues that there are other errors which were in favour of the appellant. Accordingly, the respondent seeks to uphold the judgment upon the basis that a proper award would not have exceeded the amount which his Honour did in fact award.

There is no relevant argument about past out of pocket expenses or past wage loss. It is accepted that his Honour incorrectly used the five per cent tables in assessing the impairment of earning capacity for the future commencing at a period ten years after the date of trial. In this respect his Honour made two awards in respect of future loss of earning capacity. In the first award he allowed a lump sum of $20,000 to cushion the appellant from the risks flowing from his physical incapacities for the next ten years. In the second stage his Honour allowed an amount of $105 per week for twenty-one years less 15 per cent discount.

The parties have handed up a table which demonstrates that they both agree that the second stage allowance should be $54,211 and not the sum of $46,500 allowed by his Honour. Accordingly, subject to the submissions of the respondent which arise under the Notice of Contention, it will be necessary to correct the judgment.

The respondent initially submitted that no allowance should be made for the impairment of earning capacity for the next ten years. During argument counsel for the respondent retreated from this position and submitted that the award of $20,000 was excessive. That sum represents approximately $50 per week calculated in accordance with the three per cent tables and making no allowance for a discount.