HAINES v BOOTH [1994] NSWCA 118

HAINES v BOOTH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

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

[1994] NSWCA 118 FACTS:

Defendant appealed award of damages for lost earnings, past and future, on basis that calculations made using a forty hour week should have been twenty four hour week; the plaintiff also appealed lack of discount for vicissitudes for future earnings.

HELD:

(1) Findings on lots earning capacity should not be disturbed.

(2) Findings on vicissitudes ought be disturbed

ORDERS:

(1) Appeal dismissed with costs.

Priestley JA Mr Justice Meagher will state his view first.

Meagher JA In this matter the respondent/plaintiff, Mrs Booth, was involved in a motor car accident of a fairly horrendous type on 10 November 1982 and sued the present appellant in a trial which took place on 29 July 1993 before his Honour Judge Twigg of the District Court. She obtained before him a verdict of $540,240, from which this appeal is brought. She was quite young at the time of the accident, her date of birth being 20 August 1956.

Mr Russell on behalf of the appellant has very usefully reduced the appeal to two grounds. The first ground is as to loss of earnings, both past and future. His point is that the judge calculated the plaintiff's entitlements on the basis that, uninjured, she would have worked a forty hour week. This is a point with which one must have initial sympathy. However, there are three pieces of relevant information one must consider. First, there is the evidence which she gave in the witness box; her words could not have been more precise. She said, in evidence on which she was not cross-examined, "I would have gone back full time if I was able to go back full time". Stopping there, that would have supported a finding that she intended to go back full time.