OLDS v THE NOMINAL DEFENDANT [1992] NSWCA 174

OLDS v THE NOMINAL DEFENDANT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY JJA and SAMUELS AJA

10 AUGUST 1992, 10 August 1992

[1992] NSWCA 174

DAMAGES — QUANTUM — NO QUESTION OF PRINCIPLE

Clarke JA I will ask Justice Samuels to give the first judgment.

Samuels AJA On 31 January 1984 the plaintiff, the present appellant, was involved, at the age of thirty five, in a motor vehicle accident in which he sustained the following injuries: an injury to the left wrist involving fractures of the radius and ulna; an injury to the lumbar spine which apparently affected the disc at the L4-5 level; and an open injury to the left knee involving what was described as a division of the tendon of the patella and other damage to the ligaments.

The medical history, and indeed the principal events which are relevant to assessing the appellant's damages, are set out in great detail in a chronology which was handed up at the trial, without objection. It was not marked as an exhibit, but the lack of objection presumably denotes that there was no dispute about the accuracy of the material set out in it. Accordingly I will annex to these reasons a copy of that chronology.

Liability was disputed at the trial but ultimately resolved by Judge Levine in the appellant's favour. The learned judge gave judgment assessing the damages in the total sum of $244,367.25, made up as follows: damages for pain and suffering $45,000, interest thereon $10,000; out of pocket expenses $15,271.25; past economic loss including interest $106,096; and damages for diminished earning capacity $68,000.

In this appeal the appellant contends that the assessment of damages for pain and suffering and the like and for diminished earning capacity were inadequate and represented an erroneous estimate of the damage which the appellant has sustained.