SOUTHAM v MARNEY [1995] NSWCA 441

SOUTHAM v MARNEY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA and SHELLER JA 8 March 1995

[1995] NSWCA 441 MOTOR VEHICLE — assessment of future loss of earning capacity

Clarke JA. I will ask Mr Justice Sheller to give the first judgment.

Sheller JA. Marilyn Yvonne Southam appeals from a decision of his Honour Judge Luland of Queens Counsel in proceedings commenced by her against the respondent to recover damages for personal injury and economic loss arising out of a motor vehicle accident on 27 October 1983. His Honour's judgment was given on 1 March 1994. Liability was admitted.

The appeal is directed to the adequacy of the damages. The total amount was $189,625.23. Components of that amount included general damages $55,000, past loss of earning capacity $61,640 and future loss of earning capacity $11,500. The principal or certainly the initial challenge made to his Honour's finding by Mr Robison who appeared for the appellant, was his Honour'sassessment of future loss of earning capacity. The error relied upon carried over to the assessment of general damages.

In the course of his judgment his Honour reviewed the medical evidence which was directed, in part, to the appellant's claim that in the motor accident she had suffered frontal lobe brain damage or, alternatively, a manifestation of psychological disturbance consequent upon the physical injury she sustained. By contrast the respondent contended that she suffered from hypochondriasis.

His Honour, having reviewed the evidence, found that there was no brain damage and rejected the claim that the appellant suffered from hypochondriasis. He was, however, satisfied that the appellant was not only injured in the physical manner which he had set out earlier in his judgment:

... but that those injuries had a profound effect upon her in that the psychological stress arising from those injuries and compounded by her emotional stress from being unable to find an answer for her injuries was such to bring about deficits in her cognitive functioning such effects causing a profound loss of enjoyment of life and earning capacity.