AYUSO and ANOR v AYUSO [1994] NSWCA 13

AYUSO v AYUSO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 1 and 2 March 1994, 2 March 1994

[1994] NSWCA 13

Motor vehicle accident — general damages — future earning capacity — future care — causal nexus between accident & lower back problems — total permanent incapacity

Clarke J This is an appeal from a judgment given by his Honour J B Phelan on 10 September 1992 in favour of the respondent in the sum of $462,540.98. The case which resulted in that judgment involved injuries sustained by the respondent in two motor vehicle accidents, the first occurring on 19 April 1983 and the second on 7 April 1987. It became common ground during the trial that the disabilities and the injuries flowing from the first accident were much greater than those which resulted from the second and, in the event, the appeal has been brought only in respect of the award of damages for the injuries sustained in the first accident.

The respondent was awarded general damages in the sum of $125,000; past economic loss of $149,438; impairment of future earning capacity $200,000; and $42,935 for future care.

The challenge that has been mounted puts at issue the awards for general damages, impairment of future earning capacity and future care.

The respondent was born in Spain in 1960 and came to Australia at the age of two. In 1975 she left school having obtained her School Certificate. She attended a business college for three years and appears to have worked after leaving school as a shop assistant with various retail shops. At the time of the first accident she had been working for Just Jeans for about six months.

In that accident she was riding as a pillion passenger on a motor cycle being ridden by her husband whom she had married in 1981. The cycle had been proceeding along the road at about sixty kilometres per hour when suddenly the brakes were applied and the cycle fell to the ground, skidded, righted itself and then fell down again. Liability was admitted and the Court was concerned only with the assessment of damages.