GOEKE v NOMINAL DEFENDANT [1991] NSWCA 124

GOEKE v NOMINAL DEFENDANT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and HANDLEY JJA 20 May 1991, 28 May 1991 [1991] NSWCA 124

QUANTUM — SELF EMPLOYED TRADESMAN PRE-INJURY EARNINGS — ERROR OF PRINCIPLE TO USE 4 YEAR AVERAGE TO DETERMINE QUANTUM OF DAMAGES — Self employed tradesman injured in motor vehicle accident — Trial judge bases finding of pre-injury earnings on average of 4 years prior to accident — A period of high inflation including recession. held Error of principle authorising reassessment. Appeal allowed and damages reassessed. MBP (SA) Pty Limited v Gogic (1990) 65 ALJR 203

Priestley JA For the reasons given by Handley JA, I think it necessary for thequantum of the appellant's damages to be reassessed.

A reading of the materials in the appeal papers in the light of those factual findings of the trial judge with which this court should not interfere, leads me to think that the amounts arrived at by Handley JA for the various components of the appellant's damages are appropriate in the circumstances.

I agree with the orders proposed by Handley JA. Clarke JA I agree with Handley JA.

Handley JA This is an appeal by the plaintiff from the judgment of Newton DCJ in a motor vehicle accident case. The judge found a verdict for the plaintiff and assessed damages at $151,608.26. The plaintiff has appealed on quantum issues. The defendant has not cross-appealed on either liability or quantum.

The accident happened as long ago as 20 June-1977. Apparently because of two changes of solicitors by the plaintiff and perhaps because of the delays which provoked those changes, the action did not come on for trial until 24 September 1986. The trial Judge gave judgment within a few days and the plaintiff appealed within time. However the appeal has apparently been delayed by problems with some of the exhibits. The index to the appeal papers was not settled until 22 May 1990 and after that the appeal books had to be printed. Prior to the accident the plaintiff was self-employed as a contract floor layer working with vinyl sheeting, floor tiles, parquetry, cork tiles etc. At the time of trial he was still engaged in that occupation. The trial judge assessed damages as follows: