GOVERNMENT INSURANCE OFFICE v BECHARA KOZMA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL Mauoney JA, MEAGHER JA and SHELLER JA 18 August 1993 [1993] NSWCA 121 FACTS: Motorcyclist/insured, as a _ result of negligence, collided with pedestrian/respondent on median strip who was ultimately awarded general and special damages. Insurer/appellant appealed on grounds of contributory negligence and incorrect calculation economic loss. HELD: (per curiam) (1) Contributory negligence cannot be found on facts. (2) Evaluation and discount of economic loss should not be disturbed. Meagher JA. In this matter the plaintiff, Mr Kozma, suffered an injury at Redfern when he was crossing a road and he was knocked down by a motorcyclist for whose conduct the appellant, the Government Insurance Office, is responsible. There is no question but that the motorcyclist was negligent. The result of the accident was that the plaintiff in the first place suffered from serious injuries and in the second place had to close down the small mixed goods business which he had been conducting. He was then aged 68 and he had intended to conduct the business for at least another five years. His Honour awarded him a verdict of $59,326 which is made up of the following four components — general damages, a comparatively modest sum of $15,000;out of pockets $326; past economic loss $32,000; interest on past economic loss $12,000. That award of damages has been attacked by the appellant on what are now three grounds. The first ground is that his Honour should have found contributory negligence and did not. The relevant facts of the matter are that the plaintiff, who was elderly, was incapable of walking quickly because of a childhood injury, and crossed the road when the lights were green and just before they had turned red had almost but not quite reached the median strip. He was in that position when the cyclist ran him down. I do not see how it can possibly be suggested that the plaintiff was guilty of contributory negligence. There is no reason in the evidence to suggest that if he had been more alert, or if he had stopped a little bit earlier, that the motorcyclist would not still have collided with him. I cannot see any grounds for suggesting that there was anything Mr Kozma could do which would have prevented the accident. That ground should not, in my view be entertained by the Court. The second and third grounds concern the award for economic loss. The evidence disclosed that the plaintiff and his wife conducted a small mixed goods business and its net profits — its takings less its expenses — were as follows: year ending 30 June 1981 $8,343 year ending 30 June 1982 $8,199 year ending 30 June 1983 $7,293year ending 30 June 1984 $7,848 year ending 30 June 1985 $12,156 2 UNREPORTED JUDGMENTS The figures in the part of the year ending 30th June 1986 are very difficult. That was the year of the accident and, following upon the accident, the plaintiff took the unpalatable but necessary decision to close the business down. The partial figures which exist, therefore, in the 1986 year are distorted by the fact of the fire sale. His Honour, therefore, disregarded such figures as existed for 1986 and took the average of the three previous years, the years ending 1983, 1984 and 1985. The appellant has attacked this procedure and has suggested that, in fact, if one took into account the 1986 figures one would see that the business was declining. As discussion in this Court has demonstrated, it is very difficult to know what one should infer from the partial figures for 1986 and, that being so, I see no reason why his Honour should not have taken the course which he did and simply averaged the three previous years in order to get a starting figure. I might add, having done that and arrived at the figure, his Honour discounted the figure so arrived at in order to get his figure of $32,000. The measure of discount which his Honour allowed was almost 30%. That, to me, seems a very substantial discount. Nonetheless, the appellant has urged that it was not sufficiently substantial. In my view, there is no basis for its submissions. I can seeno adequate reason to attack the figure which his Honour arrived at for economic loss. In those circumstances I would recommend that the appeal be dismissed with costs. Mahoney JA. I agree. Mr Russell has said everything that can be said in respect of the appeal. With the benefit of hindsight and treating, as he was entitled to do, the evidence as it now stands he attacked his Honour's disregard — as he described it — of the tax return figures for the year ended 30th June 1986. As I understand what has happened at the trial, the problem is that no attempt was made to raise with the plaintiff the matters raised here. They might well have been the subject of explanation. There was no reason shown why, as appears apparent on the face of the evidence, there was such a dramatic change in the business between the end of the 1985 year and the first four or five months of the 1986 year. Nothing was asked to inquire whether the takings at one time of the year might be higher than at another — for instance because of it being summer as opposed to winter. No attempt was made to explore the particular figures in detail. I can understand why the Judge, in the absence of any explanation of them, felt they did not assist in determining what, had the plaintiff not been injured, would have been a continuing profit of the business during the particular year. Hindsight is of great assistance in understanding problems but it requires that the figures on which attack is based be at least examined to some proper extent to make sure they are a reliable basis for such an examination. I agree that no basis has been shown for disturbing the judgment below. Sheller JA. For the reasons that have been given by the other members of the Court I agree that the appeal should be dismissed with costs. Mahoney JA. The order of the Court is, therefore, as proposed by Meagher JA. (1) Appeal dismissed with costs. Counsel for the appellant: D J RUSSELL Solicitors for the appellant: GIO OF NEW SOUTH WALES Counsel for the respondent: A J LIDDEN URJ GOVERNMENT INSURANCE OFFICE v BECHARA KOZMA (Mahoney JA) Solicitors for the respondent: L J SHARPE and CO