FRANCOIF v TAYLOR [1994] NSWCA 99

FRANCOIF v TAYLOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and HANDLEY JJA 12 and 13 October 1994, 13 October 1994

[1994] NSWCA 99

DAMAGES — quantum — economic loss — motor vehicle accident — respondent unemployed at time of accident — accident deprived him of substantial chance of earning significant income — whether damages for past and future economic loss excessive — held: They were — no question of principle.

MOTOR ACCIDENTS ACT — Transcover benefits received by respondent — whether under s147 of the Motor Accidents Act such payments are a partial defence — held: They are not — s147 merely confers a right to deduct those payments when satisfying the judgment.

District Court Act 1973, s44(2) and s(3) Motor Accidents Act 1988, s147 Workers'Compensation Act 1926, s63(5) ORDERS (1) Appeal allowed. (2) Set aside the judgment of Barbour DCJ except as to liability and costs. (3) Reduce the award for past and future economic loss in the manner proposed. (4) Direct that the parties recalculate the award for interest and bring in short minutes to reflect the revised judgment. (5) The appellant shoulg have the costs of the appeal and the respondent should have a certificate under the Suitors Fund Act.

Priestley JA I will ask Handley JA to give his reasons first in this matter.

Handley JA This is an appeal by the defendant from a decision of Judge Barbour QC delivered on 15 July 1993. The proceedings before his Honour arose out of a motor vehicle accident which occurred on 22 July 1987 and the case fell to be decided under the retrospective provisions of the Motor Accidents Act 1988.

At the time he was injured the plaintiff was unemployed having ceased employment with the Spastic Centre some year or so before. He had a history of prior injury which meant that he had been working as a skilled tradesman at the Spastic Centre after November 1985 on a regular part time basis for only five hours a day. In July 1986 the Spastic Centre required him to resume full time work, presumably on the basis of an eight-hour day. The plaintiff was unable to undertake work at this level and his employment with the Spastic Centre came to an end. Thereafter, despite efforts to find work, the plaintiff was unable to do so although on the day he was injured he had an appointment for a job interview.