MIDDLETON v TEH [1995] NSWCA 292

MIDDLETON v TEH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE and MEAGHER JJA 6 March 1995

[1995] NSWCA 292

ASSESSMENT OF DAMAGES — IMPAIRMENT OF FUTURE EARNING CAPACITY — APPROPRIATE RATE OF TAX — FUTURE ECONOMIC LOSS.

Clarke JA Ex tempore

There are before the court an appeal and cross-appeal in relation to an assessment of damages by his Honour Judge Viney QC in relation to two claims brought by the respondent, the plaintiff in the court below. He sought damages in respect of injuries he received on 2 December 1983 in a motor vehicle accident; and again on 22 September 1984 in another motor vehicle accident.

The timing of the respondent's accidents somewhat complicated the assessment for new legislation came into operation which applied to the second but not the first accident. His Honour determined that the damages which he awarded, in effect in one sum, should be divided as to 80 per cent to the first accident and 20 per cent to the second accident and his Honour awarded the plaintiff, in all, the sum of $270,000.

The appellant has raised two grounds of appeal in its challenge to the award. First of all, it has submitted that his Honour erred in adopting a tax rate of 18 per cent rather than 47 per cent in calculating an award for an impairment of future earning capacity.

It was said that there were a number of errors which affected this approach. It is entirely clear that his Honour did adopt an approach whereby tax at a rate of 18 per cent was deducted from the sum upon which his Honour was operating. What he said was as follows:

On the figures presented for the year ending March 1990, when the plaintiff ceased his Friday operating schedule, he earned approximately $58,000. I accept this as a fair representation of his earning capacity.

I interpose the observation that there has been no challenge to that figure. His Honour went on: