TISDELL v FEARON [1992] NSWCA 253

TISDELL v FEARON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE JA, SHELLER JA, CRIPPS JA 3 September 1992, 20 November 1992

[1992] NSWCA 253

DAMAGES — motor vehicle accident — award manifestly excessive — principles of appellate court interfering and assessing damages itself. The respondent was injured in a motor vehicle accident on 27 April 1982 and awarded $320,000 damages. The appellants appealed on the ground that the sum awarded was excessive. It was alleged the trial judge erred in awarding $50,000 for pain and suffering by misunderstanding the evidence and, in any event, the amount was excessive. It was also alleged that the awards with respect to past and future economic loss were both manifestly excessive and showed that the trial judge failed to assess properly the respondent s residual earning capacity.

By notice of contention it was claimed the judgment as a whole was not erroneous and more should have been awarded for the impairment of future earning capacity. It was claimed that an incorrect discount rate was used to accommodate the accident and vicissitudes of life and that the trial judge should not have rounded off his total to take account of double compensation as there was no such doubling. Held: The trial judge had erred in favour of the appellants with respect to the award for past loss of earning capacity and in the sum awarded as interest on past economic loss. The award for general damages was manifestly excessive. There was no double compensation and the trial judge erred in rounding off his award. In light of these findings the Court was required to reassess the award. Robinson v Riley [1971] 1 NSWLR 403 Orders: 1. Appeal upheld. 2. Judgment of the learned trial judge set aside except as to costs and in lieu thereof judgment entered for the respondent/plaintiff in the amount of $288,973. 3. The respondent to pay the appellants costs of the appeal. The respondent to have a certificate under the Suitor s Fund Act 1951.