BILL DONEVSKI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1991] NSWCA 81

BILL DONEVSKI vy 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 81

DAMAGES — motor vehicle accident — 19 year old male unemployed injured — compressed fracture of spine — fracture of right ankle — judge finds permanently unfit for heavy work — awards $20,000 for economic loss — held: (1) The absence of clear evidence of what the injured plaintiff could have earned, uninjured, did not relieve the trial judge of the obligation to make an assessment on a percentage basis or otherwise of the value of lost capacity viewed globally. Dessent v The Commonwealth of Australia (1937) 13 ALR 437; Linsell v Robson [1976] 1 NSWLR 249; Yammine v Kalway [1979] 2 NSWLR 151 applied; (2) The restrictions on his work capacity were greater than the judgment showed; (3) Accordingly this component of the judgment should be increased to $40,000. Moran v McMahon (1985) 3 NSWLR 700, 715 considered. Comments by Kirby P on the duty of the legal representatives of injured plaintiffs to secure evidence to assist in the assessment of economic loss.

Kirby P Mr Bill Donevski (the appellant) then aged nineteen years, was injuredon 7 April 1985 when a passenger in a motor vehicle insured by the respondent insurer.

Damages award to an injured passenger He brought a claim for damages in respect of his injuries, disabilities and losses. The respondent accepted liability. The appellant's claims related principally to four disabilities which he attributed to the trauma of the accident. These were: 1. Scarring on the face above and through the right eyebrow and under the nostrils, and pronounced scarring on the right ankle,: 2. A wedge fracture of the spine at the L4 level, with persistent back pain; 3. A fracture of the right ankle, with consequent permanent restriction of movement; and 4. Psychological disturbance consequent on the above.