CURRY v HARRIS [1995] NSWCA 111

CURRY v HARRIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and HANDLEY JJA 3 May 1995, 8 September 1995

[1995] NSWCA 111

DAMAGES — profound and permanent intellectual and cognitive impairments to child — proceedings brought when young man — evidence of nomadic existence provision for past and future need — likely increased need for care and assistance in later life — held: Appeal allowed — damages for need increased from $100 pw to $200 pw — judgment otherwise affirmed but varied for this increase.

DAMAGES — past and future care — need for — likely utilisation of — plaintiff suffers injuries at age 2 years 3 months — consequential substantial and permanent intellectual and cognitive impairment — tendency to impulsive unsocial conduct — difficulty in employment and personal relationships — proceedings brought when plaintiff as young man — evidence of further dislocation by later discovery of family relationships — evidence of nomadic life and only one short term personal relationship — estimation of extent of psychological injury and compensation for real need — trial judge (Garling DCJ) awards damages of $950,790 — challenge in appeal only to components for past and future care — held: (1) The existence of a need, proved by the evidence, gives rise to an entitlement to damages. Kovac v Kovac [1982] 1 NSWLR 656 (CA); Donnelly v Joyce [1974] QB 454 (CA) referred to; (2) The calculation of past need should not be disturbed; (3) Although the future need was difficult to calculate, the allowance made by the trial judge was appealably inadequate

having regard to the evidence of the plaintiff's proved need for permanent assistance in the preparation of meals; ie provision of food and shopping; some basic housekeeping; and the maintenance of his clothing etc; (4) Allowance for future assistance increased from $100 per week to $200 per week and capitalised. Medlin v State Government Insurance Commission (1995) 69 ALJR 118 (HC) referred to.