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%. To succeed in the appeal, as was recognised, the appellant must do more than merely point to some evidence supporting his assertion. I am unable to find where it is that Lloyd-Jones DCJ erred. He did not err in understanding that the respondent had ankylosing spondylosis and that he was doing light work. I find it difficult to find why Lloyd-Jones DCJ was not entitled to conclude, subject to a small discount being made (and which he made), that, but for the accident, the condition of the respondent would not have, in its ordinary progression, precluded him from continuing to undertake the light work that he was undertaking and that he could continue to do that until he reached sixty five. There was the evidence of his general practitioner, Dr Singh, to this effect. It follows, therefore, I am of the opinion that it has not been demonstrated that 2 UNREPORTED JUDGMENTS Lloyd-Jones DCJ fell into error and I would dismiss the appeal. I note that other ground of appeal was not pressed.I would propose that the appellant pay the respondent's costs of the appeal. Meagher JA I am of the same view that the appeal should be dismissed with costs. Handley JA I agree. MEAGHER JA: Costs will be on an indemnity basis. 1. Appeal dismissed. 10 2. Appellant to pay the respondent's costs of the appeal on an indemnity basis. Counsel for the Appellant: M Elkaim 15 Instructed by: GM Meadows, GIO Counsel for the Respondent: BJ Gross QC/LA Levy Instructed by: Bolzan and Princi