GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v DOOLAN SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MEAGHER JA, HANDLEY JA and Cripps JA 24 March 1993 [1993] NSWCA 115 FACTS: Appeal and cross-appeal on award damages. Appellant/plaintiff attacks reliability of evidence expert, finding of judge on economic loss sum, amount general damages. HELD: (per curiam) (1) The general form of the evidence and the fact that the orthopaedic surgean is a medical practitioner, attack on reliability of this evidence rejected. (2) Figure for net economic loss derived by acturies agreed to by both parties and discount of that figure by judge below is not disturbed. Meagher JA. In this matter the plaintiff, Mr Doolan, suffered quite a grave injury and was awarded a figure by the late Judge Lloyd-Jones in the sum of one hundred and eighty five thousand and eighty one dollars. That was made up in the sum of general damages fifty five thousand dollars, past economic loss forty five thousand dollars interest on that of thirteen thousand five hundred dollars, future economic loss seventy thousand dollars and out of pocket exprenses of one thousand five hundred and eighty one dollars. The judgment of his Honour has attracted both an appeal on behalf of the Government Insurance Office, which is not extraordinarily unusual and a cross-appeal from the plaintiff alleging that the figure is not generous enough. The overall view to which I come is, having considered all aspects of the matter, the appeal should be dismissed with costs and the cross-appeal dismissed with no order as to costs. As far as general damage is concerned, the position is fairly clear. In his evidence the plaintiff said he had problems with his brain and memory. They are facts which are not difficult to understand. An orthopedaedic surgeon called, Dr Searle, supported that. The submission from counsel for the appellant is that evidence cannot be relied upon in the absence of neurological evidence. Bearing in mind the general form of the evidence and the fact that the orthopaedic surgeon is a medical practitioner, as well as an orthopaedic specialist it must, in my view, be rejected. The attack on general damages must fail. As far as past economic loss is concerned, and I shall not go into the confusing details, the fact is a firm of actuaries arrived at a figure for the net past loss of seventy two thousand two hundred and forty five dollars. That was accepted by the plaintiff and also by the defendant. It was accepted by his Honour but reduced by thirty eight per cent. The plaintiffs attack on it must, therefore, fail. That is a very substantial discount and yields a figure of forty five thousand dollars. 2 UNREPORTED JUDGMENTS Mr Branson attacked it on the opposite point of view that there should not be any discount at all or, if so, only a very slight discount; that being, so far as I understand, that the plaintiff did have a work history and did suffer from serious injury. Certainly he suffered serious injuries and certainly he had a work history. An unfortunate fact is that the plaintiff did not have an entirely satisfactory work history. He went from job to job with long periods in between so that the task of predicting what exactly he would have earned if uninjured was extremely difficult and his Honour was, in my view, justified to remain sceptical about it. I ought not disturb either on the appeal or on the cross-appeal the figure of forty five thousand dollars. Likewise with the figure of seventy thousand dollars. I see no basis for holding that that is excessive and, in my view, the defendant's attack on it must fail. As far as the plaintiff is concerned I think that attack must also fail because it is based on a number of hypotheses, some of which must be extremely shaky. For example, the award on which it is based is not an award which, on first sight, would seem to have any relevance to the plaintiff's occupation. That being the entirety of the matter with which we are faced in my view as far as the appeal is concerned it should be dismissed with costs and as far as the cross-appeal is concerned it should be dismissed with no order as to costs. Handley JA. I agree with the reasons for judgment that have just been delivered by my brother Meagher JA, and I note with some surprise a submission that his Honour Judge Lloyd-Jones awarded damages which were so inadequate as to be below the range of a sound discretionary judgment in relation to past and future economic loss and as my brother Meagher JA, I reject that submission. Cripps JA. I agree. Meagher JA. The orders are as I proposed. (1) Appeal dismissed with costs (2) Cross-appeal dismissed with no order as to costs Counsel for the appellant: M A Elkaim Solicitors for the appellant: G M Meadows Counsel for the respondent: C Branson QC/T Meakes Solicitors for the respondent: Spencer Whitby and Co