FITZSIMMONS v TROTTER [1993] NSWCA 97

FITZSIMMONS v TROTTER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY, MEAGHER and HANDLEY JJA 5 November 1993, 5 November 1993 [1993] NSWCA 97

DAMAGES — personal injuries — motor vehicle accident — woman 34 at injury — nurse with good employment and domestic history — grossly painfully injury to shoulder and ann — nerve block and opiate drug treatment undertaken — plaintiff found genuine by doctors and judge — judgment (with interest) $708,408 — appeal on ground that excessive — held: (Kirby P; Meagher JA and Handley JA concurring) (dismissing appeal): (1) There was no relevant error in the judge's understanding of the plaintiff's medical evidence relied on; (2) There was no unacceptable differential between allowances made for future home care and medical treatment allowances; and (3) The allowance under s79 Motor Accidents Act 1988 of 50 per cent of general damages was not erroneous having regard to the prolonged proved pain and disruption of the plaintiff's life; (4) Appeal dismissed.

Motor Accidents Act 1988,s79.

Kirby P Before the Court is an appeal from a judgment entered by Loveday J on 19 March 1992 in favour of the respondent. His Honour entered judgment in favour of the respondent for the sum of $708,408.88. That sum was made up as follows:

General damages for pain and suffering (50 per cent $ 99,000.00 of a worst case)

Out-of-pocket expenses (agreed) 129,599.00 Past economic loss (20 weeks at $364.50, 1 July 104,959.00 1988 to healing at $26,276.00 per year, Fox v Wood

included)

Future economic Loss 250,000.00 Future medical expenses ($277 per week for 3 120,000.00 years, plus $138 per week for 36 years, less

vicissitudes)

Future care ($212.50 per week for 5 years, plus 85,000.00 $100 per week for 20 years, less vicissitudes)

Future transport expenses 10.000.00 SUBTOTAL 806,804.00 Less amounts to be paid back 127.395.12 TOTAL 679,408.88 Plus interest on wage loss (15 per cent for 2 years 25,000.00 on $75,000)