NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v FLEISCHNER [1995] NSWCA 332

NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v FLEISCHNER

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBy P, COLE JA and ROLFE AJA 30 March 1995 [1995] NSWCA 332

DAMAGES — loss of economic capacity — past financial loss — loss of future economic capacity — pharmacist qualified as registered podiatrist — motor vehicle injury reduces capacity to perform podiatry — calculation of past and future economic loss — calculation by reference to the differential income derived from pharmacy and podiatry — calculation by reference to likely but-for-injury employment mix between pharmacy and podiatry — injured claimant states her intention was to move out of pharmacy into podiatry — objective evidence of rise in actual post-injury income — whether, for calculation of past financial loss and future economic loss, allowance must be made for larger probable increase in income but for injury — held: The provision made for past and future economic loss did not reveal error in the light of the injured party's stated intention (inferentially accepted by the primary judge) that, but for injury, she would have increasingly moved from pharmacy activities into the higher earning activities as a podiatrist — appeal dismissed. Malec v J C Hutton Pty Limited (1990) 169 CLR 638; Medlin v The State Government Insurance Commission, (1995) 127 ALR 180 (HC) referred to.

Kirby P. Sinclair DCJ entered judgment in favour of Mrs Tracey Elizabeth Fleischner (the respondent) in the sum of $238,204. The New South Wales Insurance Ministerial Corporation (the appellant) initially contended that her proper judgment was $93,204. The two items in dispute between the parties in the appeal were:

Past financial loss (and interest thereon):

The appellant contended:

$30,000 + $15,000 = $45,000

The respondent defended his Honour's award: