GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v BLANUSA [1992] NSWCA 78

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v BLANUSA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY JJA, and SAMUELS AJA

10 August 1992, 10 August 1992

[1992] NSWCA 78

DAMAGES — quantum — no question of liability.

Clarke JA I will ask Justice Handley to give the first judgment. HANDLEY JA This is an appeal by the defendant from a verdict and judgment for a plaintiff in a motor vehicle case. The proceedings arose out of an accident that occurred on 16 September 1985. Liability was admitted and the action proceeded as an assessment. The trial judge awarded the plaintiff damages of $102,095.41, which comprised $2,095.41 for out of pocket expenses and $100,000 for other heads of damage.

The other heads of damage, at least as found by the trial Judge, were general damages to cover pain and suffering, past and future, and for loss of earning capacity with a cushion for future unemployment and under employment to the age of fifty five. His Honour had earlier rejected the plaintiff's claim for past economic loss. As to this head of damage, his Honour said: "The plaintiff made a claim for economic loss but I am unable, on such evidence as has been presented, to determine that he has suffered any quantifiable loss. He claimed that he had some documents at home which were not produced which established this loss. He claimed orally to have lost $20,000, but in the absence of any documentary material or other supporting material, I am unable to accept that claim."

However, it is clear from earlier findings that his Honour had accepted the plaintiff's evidence that he lost three weeks from work immediately after the accident.

It is common ground between the parties that the trial Judge fell into error in awarding a single lump sum for the heads of damage other than out of pocket expenses which he accepted. The appellant has therefore established an appealable error which prima facie entitles this Court to intervene.