NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v DA SILVA [1993] NSWCA 195

NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v DA SILVA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and Cripps JJA 23 March 1993, 23 March 1993 [1993] NSWCA 195

The appeal raised two issues of damages, namely the amount the trial judge awarded for past economic loss and the allowance made for the future.

Held: The trial judge had not made any error.

Cripps JA This is an appeal from a decision of Judge Lloyd-Jones in the District Court published on 6 March 1991 entering a judgment for the respondent in the sum of $165,61.

Lloyd-Jones DCJ apportioned the verdict. We are concerned today only with two elements of it and the argument that has been addressed to this Court is the same, in effect, for each.

The two elements are an allowance of $75,000 for past economic loss for the five years between the accident and the date of trial, and the allowance of $20,000 for the future, which was the period between the time of trial and when the respondent reached the age of sixty five, a period, I think, of some sixty odd weeks.

The issue posed for determination in this appeal is whether the deduction in both cases made by Lloyd-Jones DCJ of something in the order of 10% of the net wages which the respondent would have earned had he remained in employment was too small in all the circumstances. I do not think it is necessary for me to go into detail about the accident bearing in mind the limited issue on appeal.It is sufficient, I think, to note that it was the appellant's claim at trial and the one maintained on this appeal that the respondent suffered from a condition called ankylosing spondylosis; a condition which it is said progressively gets worse and interferes with, and finally destroys, the working capacity of anyone who has it.

Mr Elkaim, for the respondent, makes the submission to the effect that, because the worker was injured in 1978 and because he was thereafter on light work and because of the medical evidence concerning the development of this condition, Lloyd-Jones DCJ was wrong in assuming, in effect, that he would have earned between accident and date of trial, the net wages that he claimed less only 10%.