McDOUGAL v CULLEN AND ANOR [1995] NSWCA 280

McDOUGAL v CULLEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and POWELL JJA 29 March 1995, 29 March 1995

[1995] NSWCA 280

DAMAGES — loss of economic capacity — future possibilities-aircraft engineer — injury to left wrist — physical consequences for work as aircraft engineer — difficulty in climbing in and out of aircraft parts — difficulty in lifting heavy objects requiring both hands — allowance of lump sum as "cushion" for possible future eventualities — allowance of $10,000 — no evidence of any ongoing actual weekly loss — whether allowance made was wrong — whether failed to take account of high earnings of the plaintiff ($2,000 per week) and risks of future loss of employment — whether failed adequately to take account of risks of restructuring of employers and possibilities of periodic unemployment due to physical incapacity — whether award appealably wrong — held (1) (by the Court): The approach to the award of a "cushion" for loss of capacity was appropriate. Arrowsmith v Haines, Court of Appeal (NSW), unreported, 21 August 1990; [1990] NSWJB 114; Mizzi v Murgatroyd and Anor, Court of Appeal (NSW), unreported, 10 March 1989; [1989] NSWJB 77, referred to; (2) (by Mahoney JA and Powell JA; Kirby P dissenting): The allowance of $10,000, although low, was not appealably wrong and should not be disturbed Moran v McMahon (1985) 3 NSWLR 700 (CA) considered; (3) Appeal dismissed.

DAMAGES — non-economic loss — injury to left wrist in right handed aircraft engineer — age 29 years at injury — primary judge (Dunford J) assesses 20 per cent in relation to a most extreme case under Motor Accidents Act 1988, s79 — appellant contends should be 25 per cent — held (by Mahoney JA and Powell JA; Kirby P contra): The assessment of 20 per cent was not shown to be wrong and should not be disturbed.