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. In my opinion the appeal should be dismissed, with costs. Mahoney JA I agree with what has been said by Cole JA. Mr Williams has properly pointed out that the compensation here in question is, in the sense he referred to, compensation against the possibility that in the future the injury may come against him economically. That is appreciated but, when the effect of a fifteen per cent or thereabouts disability is taken into account, in relation, for example, to obtaining employment, I do not feel that the amount involved is excessive. It is, in my opinion, at the higher level of what might have been awarded, but I am not able to say that it is beyond the bounds of a proper judgment. The order of the Court will, therefore, be that the appeal is dismissed with costs. 2 UNREPORTED JUDGMENTS COLE JA. In relation to the order which I have previously indicated regarding costs, that order is withdrawn in the light of the subsequent submissions which have been put to the Court. The respondent has indicated that on 1 August 1995, that is shortly after the settling of the appeal book, an offer of compromise was made. The appellant accepts that such an offer of compromise in the form required by the rules was, in fact, received at that time. The result of the appeal is that the respondent plaintiff has received a judgment no less favourable to the respondent than the terms of the offer. Accordingly, pursuant to Pt52A r22 subr4, which counsel for the appellant accepts applies in relation to appeals of this nature, the respondent is entitled to an order for costs on an indemnity basis in respect of the appeal as and from 1 August 1995. I would so order. The respondent had filed a cross-appeal but that cross-appeal has been withdrawn. In those circumstances, in my opinion, the appellant should have his costs, if any, of the cross-appeal, up to and including the date upon which it was withdrawn. Those costs are to be paid on the usual basis. Appeal dismissed with costs on indemnity basis as and from 1 August 1995. Appellant awarded costs of cross-appeal on usual basis up to and including the date upon which it was withdrawn. COUNSEL: Appellant: MB Williams Respondent: RJ Desiatnik SOLICITORS: Appellant: Brophy Bridge and Mirow Respondent: Bingham Turnell Corah