JIM DONEVSKI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1991] NSWCA 82

JIM DONEVSKI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES

KIRBY P, MAHONEY JA and HOPE AJA 14 August 1991 [1991] NSWCA 82

DAMAGES — motor vehicle claim — 16 year old storeman packer injured — suffers loss of spleen and serious soft tissue injures — trial judge (P J Phelan DCJ) awards $5000 for diminution of future earning capacity — appeal on that head of damages — held: (allowing appeal) (1) The trial judge had erred in not making allowance for the possibility of future incapacity by reason of the loss of the spleen which reduced the appellant's capacity to resist periodic infections; (2) Having found the appellant permanently unfit for heavy work compensation of $5000 for loss of earning capacity was manifestly inadequate; (3) $20,000 substituted for this head and damages re-assessed accordingly.

Kirby P Mr Jim Donevski (the appellant) was injured in a motor vehicle accident on 7 April 1985. This was the same motor vehicle accident in which his brother, Mr Bill Donevski, was injured and which was the subject of the immediately preceding judgment and orders.

Judgment in motor vehicle assessment The appellant was aged sixteen years at the time of the accident. The circumstances of the accident are not important to the resolution of the appeal. Liability to pay damages to the appellant was admitted by the statutory defendant, the Government Insurance Office of New South Wales (the respondent).

The appellant's case came on for trial before P J Phelan DCJ in the District Court on 17 March 1989. The appellant's principal injuries and disabilities were a loss of consciousness of unspecified duration, right-sided forehead abrasions, a serious abdominal injury due to a ruptured spleen, and soft tissue injuries to the lumbo-sacral area of the spine. For these injuries and disabilities he claimed damages.