GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MICHAEL JAMES FRANKS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MEAGHER JA, HANDLEY JA and Cripps JA 23 March 1993 [1993] NSWCA 112 FACTS: The plaintiff was injured in a motor vehicle accident for which he was awarded, amongst other amounts, an amount of $57,200 for past economic loss. The appellant has brought the appeal against the quantum of this head of damage. HELD: (per curiam) (1) The amount awarded by the trial judge was modest in the circumstances and need not be disturbed. Meagher JA. This matter is an appeal from a judgment of the District Court entered on 4 December 1991. The judgment is a judgment of Judge J B Phelan. In my view, the appeal should be dismissed with costs. The plaintiff was involved in a motor car accident and the appeal is an appeal on quantum. It is not an entirely easy case because of the somewhat evanescent nature of the plaintiff's activities. He was born July 1960 and left school when he was fourteen years. Thereafter he adopted a number of occupations. He worked for three months as a shop assistant. He worked for three months as an apprentice butcher. He worked in cello papers. He worked for McWilliams Wines. There followed a series of jobs. He worked with Ace Gutters and then at the Flemington Markets and all of these periods were punctuated by some periods of unemployment. During 1985/86 he went to Tasmania. When he came back he started a business on his own at Wyong which I am told is on the North Coast. There were four partners, one of which was his wife. Various partners came and went and he eventually ended up being in sole partnership with his wife. The accident took place in April 1987. The verdict from his Honour was $129,442.26. Of that the sum of $50,000 was awarded for pain and suffering. Although covered in the Notice of Appeal that has not been the subject of any submissions. Past economic loss, however, was covered by an award of $57,200 and that was the subject of some very considerable debate. Future economic loss was $22,000 and medical expenses $242.26. The principal debate was concerning the appropriateness of $57,200. The materials his Honour had to work on were extraordinarily slight. They mainly concerned a consideration of the business which the plaintiff was last concered with, that is, the motor car business of initially four partners and ending with two partners. Mr Petty's careful argument for the appellant suggested that the figure chosen by his Honour of $50,000 was simply not justified on the evidence. I disagree, although bearing in mind the very fragmentary nature of the evidence I can understand the force of his submission. If one looks at the plaintiff's accountant's report for the partnership business one will see in November 1986 gross monthly income was $1,365 and it progressed 2 UNREPORTED JUDGMENTS graduallyuntil, in April 1987, the figure was $3,325. I pause to mention that the accident was on the 8 April 1987. If a business was progressing at that rate, no matter what the outgoings might have been, it is reasonable to have chosen the figure which his Honour did choose. His Honour discounted the figure because of the possibility of illegality, and I use the word in the very broad term, of the business being conducted. Mr Petty suggested there was no discount for any other factors. However, the basic figure his Honour used was a figure of $270.00 a week and that figure was derived from the accountant's report, the accountants report making it plain that the figure was a very modest figure; in other words already discounted for other factors. For those reasons I do not think that the attack on his Honour's selection of the figure $57,200 succeeds. In my view the appeal ought to be dismissed with costs. Handley JA. I agree. The fact that his Honour adopted a conservative figure in calculating past economic loss is demonstrated by a comparison between the figure he adopted for the plaintiffs net weekly loss after tax and the wage rates for the less skilled classifications in the Motor Vehicle Repair Industry Award which was tendered by the plaintiff. The award figures constitute a cross check against the figures in the accountant's report anddemonstrates the conservative nature of the judge's assessment. Cripps JA. I agree with Mr Justice Meagher and the orders he proposes. Meagher JA. The orders of the Court are: 1. appeal dismissed with costs. (1) Appeal dismissed with costs Counsel for the appellant: G Petty Solicitors for the appellant: Stephen Mills: solicitor for Government Insurance Office Counsel for the respondent: R E Quickenden Solicitors for the respondent: William Ryman and Co