RUDMAN v WILSON INDUSTRIES PTY LTD [1994] NSWCA 274

RUDMAN v WILSON INDUSTRIES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

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

[1994] NSWCA 274

FACTS:Plaintiff damages assessment heavily discounted in respect of past and future economic loss.

HELD:

(1) Discount so savage as to be almost penal.

ORDERS:

(1) Appeal allowed

(2) Judgment of the Court below set aside.

(3) Substitute judgment in the sum of $210,615.00.

(4) Judgment to take effect from 2 September 1992.

(5) Respondent to pay the Appellant's costs of the Appeal and Trial.

(6) Respondent to be given Certificate under the Suitors Fund Act, if so entitled.

Priestley JA I will ask Mr Justice Meagher to give judgment.

Meagher JA The plaintiff, who is the current appellant, suffered a very severe accident on 11 March 1986 when thirty-five years old. In that accident he suffered a head injury. Mr Justice Grove awarded him a verdict of $148,295.00 in a trial dealing with assessment alone.

It is an extraordinarily difficult case, both because of the imponderables involved and the plaintiff s unattractive personality, a matter which influenced the Judge. He was a drunkard, a loafer, liar, ex prisoner, wife molester and a man of violence.

His work record before the accident was deplorable: worked only about 50 per cent of the full time and then perhaps one-third of the going average weekly earnings. In these circumstances one can understand his Honour's decision to discount heavily the amounts of damages to which the plaintiff was otherwise entitled.

However, in my view his Honour discounted far too heavily. In my view the discounting which his Honour undertook was so savage, as to be almost penal and, in my view, both the economic loss for the past and the future economic loss ought to be disturbed. I have not reached any lump sum, but I should indicate to counsel the way that the matter ought to be treated and, in due course, counsel can provide figures.