SMITH v RAY [1995] NSWCA 436

SMITH v RAY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY and COLE JJA 4 December 1995, 4 December 1995

[1995] NSWCA 436 Damages — no question of principle.

Cole JA Judge Sinclair awarded the respondent, on an assessment of damages, the sum of $101,591. Included in that sum was the sum of $40,000 for future economic loss. It is only that element in the trial Judge's decision which is, after amendment, the subject of appeal. The appellant contends that the amount awarded for future economic loss is excessive.

The respondent, aged twenty-one years, was injured in a motor vehicle accident on 23 March 1992. He suffered a fracture of the right ankle, a sprained left ankle, musculoligamentous injury to his left shoulder, lacerations and bruising. He was hospitalised for three days, but discharged on crutches. He spent a further six months recovering.

The trial Judge accepted medical evidence from a Dr Dixon, orthopaedic specialist, and Dr Pillemer, that he had suffered a permanent disability in the right ankle equivalent to about fifteen per cent loss of function. Judge Sinclair found that he was not fit for constant, heavy labouring work on uneven ground; that that unfitness was permanent; that he suffered discomfort in his right leg; and that that discomfort may be exacerbated by work usage.

Regarding the sum of $40,000, it is a sum awarded to compensate the respondent for his loss of earning capacity during the remaining forty odd years of his employment. He is a person without a trade, having done two years only of an apprenticeship. His ankle disability reduces his work capacity and the prospect of obtaining employment. Using the five per cent tables, the figure of $40,000, awarded for future economic loss, assuming forty years of working life, equates to approximately $50 per week. On any view, that is not an excessive sum for an unskilled person with no qualifications seeking employment in a labour market and having a fifteen per cent disability of the right leg.