THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v JACKSON [1994] NSWCA 112

THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v JACKSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and MEAGHER JJA 13 April 1994, 3 May 1994 [1994] NSWCA 112

APPEAL FROM DISTRICT COURT — Assessment of damages in motor vehicle accident case — Judgment for $276,000.

GENERAL DAMAGES — $100,000 awarded — Brain damage and physical injuries — Advantage of trial judge in seeing plaintiff in evidence — Assessment not appealably wrong.

ECONOMIC LOSS — Basis of assessment — Judge held proper basis was award of "cushion against future bouts of unemployment and employment at lesser rates of pay" — $150,000 awarded — Held: On the facts, no appealable error in adoption of that basis — Effect of uncertainties as to future employment on quantification of damages.

ORDER

Appeal and cross appeal dismissed with costs.

Mahoney JA On 26 September 1984 the plaintiff was injured whilst riding a motor cycle. He sued for damages in the District Court. The defendant has accepted responsibility: Acting Judge Finnane QC was invited to assess damages.

On 9 November 1990 his Honour gave judgment for the plaintiff for $276,000. The defendant has appealed to this Court against his Honour's judgment.

His Honour's award of damages was made up as follows: 1. Pain and suffering past, present and for the future $100,000 2. Loss of opportunity and cushion for future $150,000 unemployment 3. Future medical expenses $25,000 4. Past wage loss (including interest) $1,000 Total $276,000

The defendant, on this appeal, has contested the components of damages represented by items 1, 2 and 4. In the Notice of Appeal, the only grounds pressed, grounds 4 and 5, related to the award of general damages and the award for "loss of opportunity and cushion for future employment": both were said to be excessive. The plaintiff has cross appealed in respect of his Honour's calculation of future economic loss (his adoption of, as it was described, a "cushion" as the basis of calculating that loss), the assessment of past economic loss and the adequacy of the award of general damages. And in the Notice of Cross Appeal, certain findings of fact were contested.