MILLER v SMITH [1995] NSWCA 295

MILLER v SMITH

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA and SHELLER JA

7 March 1995

[1995] NSWCA 295

MOTOR VEHICLE ACCIDENT Assessment of damages — future economic loss

Handley JA. I will ask Sheller JA to give the first judgment.

Sheller JA. The plaintiff, Keith Brian Miller, appeals from a decision of Phelan DCJ of 20 December 1993 in proceedings to recover damages for injuries suffered by the plaintiff in a motor vehicle accident on 18 April 1989. The appeal is limited to the adequacy of the amount awarded by his Honour for future loss of earning capacity. The plaintiff submitted that his Honour's assessment of a 50 per cent constant residual earning capacity for the remaining eighteen years of the plaintiff's working life was too great.

The plaintiff was born on 10 November 1947 and was aged forty-one at the date of accident and forty-six at the date of his Honour's decision. After the accident he was left with two injuries, one to the right ankle and the other, to a lesser degree, a facial injury. For present purposes I need not deal with thenature of the facial injury.

Shortly after the accident the plaintiff was referred to an orthopaedic surgeon, Dr Peter Giblin. His reports usefully set out the plaintiff's symptoms and the history of their treatment.

After the accident the plaintiff made, what was regarded as, a reasonable recovery in respect of the ankle injury until July 1989 when osteoporosis was demonstrated in x-rays. On 3 November 1989 he underwent manipulation of the ankle joint and multiple adhesions were felt. His condition did not improve. At that stage he had problems with walking. On 2 May 1990 a right subtalar joint arthrodesis was performed. This improved his condition but, in the language of the trial judge, did not remove crippledness or lessen chronic pain. The arthrodesis had gone on to solid union. In his report of 13 November 1991 Dr Giblin confirmed that. He went onto describe chronic pain in the os calcis area of the ankle which remained unchanged. There was associated osteoporosis secondary to the injury.