LARSEN v NSW INSURANCE MINISTERIAL CORPORATION SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL KiRBY P, MEAGHER JA and HANDLEY JA 5 November 1993 [1993] NSWCA 119 DAMAGES — personal injury — rigger 38 years — osteoarthritis in wrist — judgment for $349,495 — appeal and cross appeal — errors in amounts in calculation — challenge to general damages — complaint about past and future economic loss — errors in reasoning — failure to allow for special contingencies in case — held: Appeal and cross appeal dismissed — Court does not fine tune damages judgments — overall result correct. Kirby P. I will ask Meagher JA to deliver the first judgment. Meagher JA. In this matter the plaintiff, Mr Larsen, suffered an accident on 18 October 1985 when he was thirty-one years of age. His Honour Judge McDevitt, on the hearing of the action, awarded a verdict in the sum of $349,495.67 in his favour. This has attracted an appeal from the defendant and a cross-appeal from the plaintiff. The case contained a number of points on which we have heard detailed argument. The case seems to be more difficult from a mathematical reservation than most cases. On the cross-appeal, the plaintiff was undoubtedly correct when he complains that his Honour took in out-of-pocket expenses at an unjustifiably low figure of $865.00 instead of $9,108.00. The plaintiff is also correct — and the appellant accepted — in alleging that his Honour took an unjustifiable interest rate for past economic loss, namely, four per cent instead of seven per cent. If one adjusted his Honour's figures toaccount for these two items one would have to add the best part of another $25,000.00 to the verdict. The defendant on the appeal has attacked three main areas. One is the general damages, as to which I should say at once I would not disturb them in the slightest, particularly in view of the discretionary nature of general damages. Secondly, as to the past economic loss, the appellant makes a number of complaints but bearing in mind that the figure which his Honour awarded was only $84,861.00, and the figure which the appellant suggests is correct is $78,000.00, the complaints are hardly of major interest. Where the major dispute arises, however, is future economic loss which was awarded by his Honour to the plaintiff in the sum of $168,000.00. There are many attacks of some considerable cogency made on this figure. It was said it was based on a false finding that the plaintiff would continue to work as a welder at Garden Island until he was aged sixty-five, whereas there was no such evidence. There is some truth in this allegation. It was also said that his Honour made no discount for adverse contingencies, and that is apparently true. It is also said that the assessment of diminution in future earning capacity of fifty per cent, was excessive, and, at first sight, that would seem so to be true. What his Honour did, in calculating future economic loss, was simply to take the current rate of pay of a rigger, which was $430.00, divided by half getting the figure of $215.00 and calculated that out until age sixty-five. 2 UNREPORTED JUDGMENTS My initial intention was to uphold the appeal on the basis that that is obviously an incorrect way of doing things. However, I have been convinced by Mr Tonner, in a very interesting argument, that the future economic loss ought not be disturbed. It may, perhaps, be a fraction high — one does not know — but if one treats the fifty per cent diminution in earning capacity as including adverse contingencies, the figure does make more sense, particularly when one appreciates that the loss at the commencement of the period would be very much less than the loss toward the end of the period; at age sixty/sixty five I imagine the plaintiff's loss would be very much greater than that. Taking one thing with another I would propose that the court accede to Mr Tonner's submission that both the appeal and cross-appeal be dismissed. Kirby P. I agree. Handley JA. I agree. I also thought that the figure for future economic loss too high but I was reminded, that the plaintiff was aged thirty-eight so at the date of trial he had twenty-seven years of his normal uninjured retirement from work at sixty-five. Given the progression of the plaintiff's osteoarthritis in his wrists it seems to me that, on the evidence before the trial judge, the plaintiff would have lost far more than fifty per cent of his capacity for many of those years. In the circumstances I concur in the reasons and the orders proposed by Meagher JA. Kirby P. The Court adds the order that the appellant should pay two-thirds of the respondent's costs of the appeal and that there be no order as to the costs of the cross-appeal. The order in respect of the costs of the appeal is designed to take into account the success of the cross-appellant in the cross-appeal. The reason for dismissing the cross-appeal is that, when looked at as a whole, the final judgment entered (allowing for the cross-appeal) is in a sum which the Court would not dispute. The orders of the Court will therefore be: 1. Appeal dismissed; 2. Cross-appeal dismissed; 3. Appellant to pay two-thirds of the costs of the respondent of the appeal. Orders accordingly. Counsel for the appellant: G R Petty Solicitors for the appellant: Michael E Stevens and Co Counsel for the respondent: R C Toner Solicitors for the respondent: G M Meadows (Solicitor for GIO of NSW)