ROBERTSON v DARCY [1993] NSWCA 239

ROBERTSON v DARCY

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, MEAGHER JA and HANDLEY JA 3 November 1993

[1993] NSWCA 239

DAMAGES — NO QUESTION OF PRINCIPLE

Clarke JA. This is an appeal from a judgment given by the late Judge Lloyd-Jones QC on Friday 23 November 1990. His Honour was called upon to assess damages in a claim by the respondent and in due course his Honour assessed damages at $88,922. The damages were made up as to $60,000 general damages; impairment of future earning capacity, $12,500; out-of-pocket expenses, $2,422, and the balance was interest. The components for general damages, future loss of earning capacity, and interest are all challenged.

The respondent was born in 1950 and at the time of the accident, 15 May 1985, was 34 years old. The case came to trial in November 1990 when she was just 40 years old. Prior to the accident she had suffered a head injury, which left her with no continuing disability, and, more relevantly, asthma. Her asthmatic condition was ultimately diagnosed as emphysema and was quite disabling.

In the accident she sustained what has come to be regularly described as a whiplash injury to her neck, which she said left her with permanent disability. She also asserted that while she had not lost any income of a consequence of her injuries to the time of trial therewas a prospect that they would interfere with her chance of earning moneys in the future. It was in respect of this claim that his Honour allowed $12,500.

In opening the appeal counsel for the appellant submitted that this was at best a moderate whiplash injury and that an assessment of $60,000 was out of all proportion to what had been disclosed by the evidence. In addition, he sought to explain the verdict by pointing to what he described as a number of mis-statements of the evidence by his Honour. According to the argument, his Honour has either misunderstood or mis-stated the evidence so as to make the respondent's condition appear worse than it actually was and thereby justify awarding such a large amount of compensatory damages.