HAE RAN CHA v FORRESTER [1992] NSWCA 103

HAE RAN CHA v FORRESTER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, SHELLER and CRIPPS JJA 10 November 1992, 10 December 1992

[1992] NSWCA 103

DAMAGES — QUANTUM — PERCENTAGE CONTINGENCY ALLOWANCE — TOTAL INCAPACITY FOR WORK The appellant claimed that damages awarded to the respondent in relation to injuries suffered by him, in a motor vehicle accident in 1988 for which the appellant did not dispute liability, were excessive. The appellant argued that the trial judge's findings that the respondent was totally incapacitated, and that this total incapacity arose from the 1988 accident, resulted from a material misapprehension of fact; that there was evidence of suitable work available to the respondent, who had not shown that he had taken all reasonable steps to pursue employment; that the 20 percent contingency allowance was too low; that the award for non-economic damage was excessive; and that the interest on that amount should have been calculated at a lower rate and reduced by $407.

Held:

1. His Honour could reasonably find that the worker was totally incapacitated and that this arose from the 1988 accident.

2. As the respondent was incapable of working the existence or otherwise of work opportunities was irrelevant.

3. The percentage allowance for vicissitudes is discretionary, and his Honour was in a position to judge what was appropriate.

4. The award for non-economic loss was not unreasonable, and the issue of interest was de minimis, so the Court should not interfere with the trial judge's verdict.

Mahoney JA I agree with the judgment of Sheller JA and the orders he proposes.

Sheller JA This is an appeal by the defendant Hae Ran Cha from a judgment givenon 19 April 1991 by his Honour Judge Levine QC, as he then was, in proceedings brought by the respondent, John Owen Forrester, to recover damages for injuries, loss and damage suffered as the result of a collision between the respondent's vehicle and a vehicle driven by the appellant on 30 September 1988. The Motor Accidents Act 1988 applied to the accident. His Honour gave a verdict of $230,622 in favour of the respondent made up as follows: