FAHEY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1995] NSWCA 145

FAHEY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA and COLE JA 6 March 1995

[1995] NSWCA 145

DAMAGES — future economic loss new trial limited to damages

Sheller JA. The appellant, Terry John Fahey, appeals against the adequacy of the damages awarded in an amount of $253,050 to him by his Honour Judge Herron QC on 15 April 1992 in proceedings against the respondent arising out of a motor vehicle accident which occurred on 5 April 1987. The appeal is directed to the amounts awarded by his Honour for general damages of $50,000; past loss of earnings of $100,000; and future economic loss of $66,640.

It is appropriate in the circumstances that I deal first with the amount of damages awarded by his Honour for future economic loss. When he came to deal with this aspect of the damages his Honour said that he thought it would be fair to approach the plaintiff's future loss of income earning capacity upon the basis that he has lost 25 percent of his income earning capacity. The plaintiff had sought what his Honour described as a 'much greater figure'. His Honour then went on to say that on the basis that the plaintiff, uninjured, wouldbe in receipt on an income in the order of $400 a week, that would result in a weekly loss of $100. His Honour then proceeded to apply the discount tables on the basis that the plaintiff had a working life from the date of trial of 20 years and by that means arrived at the amount to which I have referred.

Part of the appellant's contention in this appeal is that the assessment of future loss of earning capacity at 25 percent is unsustainable. Prior to the 1987 accident the plaintiff had been an outstanding first grade rugby league player and had played first grade for some years with the Canberra Raiders. It was accepted that the injury led to his no longer being able to play rugby league. However, the trial proceeded on the basis that but for the accident his first grade rugby league career would have been limited to four further playing seasons beginning with the 1987 season. These seasons had passed by the time the matter came to trial. The amounts that the plaintiff would uninjured have earned during those seasons were taken into account in the assessment of past economic loss.