NICOLA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, MEAGHER JA and HANDLEY JA 15 November 1991 [1991] NSWCA 75 QUANTUM — NO ISSUE OF LIABILITY Handley JA. This is an appeal by a plaintiff from the assessment of the damages to which he is entitled as a result of having been injured in a motor vehicle accident as the result of the negligence of a driver of a motor vehicle for which the respondent is legally liable. The accident occurred on 6 November 1984 when the plaintiff was a little over fifty-seven years of age. At the time he was a successful, highly regarded and well paid salesman employed in the food trade by a Mr Arquilla who gave evidence at the trial in the plaintiffs case. By the time of the trial the plaintiff was a little under sixty-three. The trial judge awarded $25,000 for general damages. This figureis challenged by Mr Hartigan who appeared for the appellant. The plaintiff sustained injuries to his left knee, his shoulder and back and to his head. The principal result of the injuries, so far as the plaintiffs physical condition is concerned, is the injury to the left knee which has occasioned him a significant degree of disability. That knee is a candidate for early and progressive, osteoarthritic changes, so it is likely to get worse and further reduce the plaintiff's comfort and mobility. The most serious consequence for the plaintiff has been the closed head injury. The evidence of the plaintiff, his former employer and his daughter and the expert evidence of neurologists, psychiatrists and psychologists, is that the plaintiff suffered significant organic brain damage. This manifests itself in memory loss but also in changes in his behaviour. There has also been some impairment in the plaintiff's intellectual ability. He appears to be experiencing certain personality disturbances, including depression, social withdrawal, anxieties and lack of insight. The trial judge said that speaking for himself, having observed the plaintiff in the witness-box, he would have come to the same conclusion. He made other relevant findings which I need not recapitulate. Apart from the effects of his organic brain damage as observed by medical specialists, his daughter and his former employer, there is also the most significant fact that when the plaintiff returned to work following physical recovery from his injuries he was unable to perform his duties as a salesman with anything like the success and efficiency that he had demonstrated prior to his injury. His behaviour became inappropriate, there was lack of memory, lack of follow through and he failed to carry out routine duties such as noting up changes in prices and in the availability of items of stock. This caused embarrassment and loss of goodwill to his employer and ultimately his continuing inappropriate behaviour led to his employer dispensing with his services. 2 UNREPORTED JUDGMENTS Bearing in mind the satisfaction and the high remuneration which the plaintiff had previously derived from his work, it is apparent that the organic brain damage which has been identified by both lay and expert witnesses has had a marked effect on his capacity to cope with and relate to what is going on around him. When I bear in mind the effects on him and on his personality of this organic brain damage, together with the physical injuries to which I have already referred, and I compare these injuries and their consequences forthis plaintiff with his Honour's award of $25,000 for general damages, I am driven to the conclusion that the award is manifestly disproportionate to the injuries and far too low to be allowed to stand. In my opinion that component of the award must be set aside and in lieu I would propose an award of $50,000 general damages. The next challenge by the appellant relates to his Honour's refusal to allow interest on his award for past economic loss. Mr Barry, who conducted this case with his usual economy and efficiency, did not dispute this error and he and Mr Hartigan are agreed that this calls for a further adjustment in favour of the appellant of $24,839.60. The final challenge is to his Honour's award for future economic loss. I am not satisfied that his Honour's allowance of $40,000 for this particular component of the plaintiff's loss cannot be supported as a reasonable exercise of a trial judge's discretion in a case of this kind. Mr Hartigan in my opinion has failed to establish any error in either his Honour's figures or his Honour's reasoning which would entitle this Court to intervene and substitute a different figure. I would propose therefore that the following orders be made:1. Appeal allowed. 2. The assessment of the plaintiff's damages by the trial judge be set aside. 3. There be substituted a verdict for $163,878 comprising a futher $25,000 for general damages and a further $24,839.60 for interest. 4. The substituted verdict take effect from 14 May 1990. 5. The order for costs made by the trial judge to stand and the respondent to pay the appellant's costs of this appeal and, if qualified, to have a certificate under the Suitors" Fund Act. Clarke JA. I agree. Meagher JA. I also agree. Clarke JA. The orders of the Court will be as Mr Justice Handley proposed. Orders accordingly. Counsel for the appellant: J HARTIGAN Solicitors for the appellant: ABBOTT TOUT RUSSELL KENNEDY Counsel for the respondent: C T BARRY Solicitors for the respondent: SOLICITOR FOR THE G I O