SM TIMBS v NSW MINISTERIAL CORPORATION (FORMERLY GOVERNMENT INSURANCE OFFICE OF NSW) [1995] NSWCA 470

SM TIMBS v NSW MINISTERIAL CORPORATION (FORMERLY GOVERNMENT INSURANCE OFFICE OF NSW)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY and COLE JJA

10 March 1995, 10 March 1995 [1995] NSWCA 470

No question of principle.

Mahoney JA The court is in a position to give judgment and I will ask Mr Justice Cole to give the first judgment.

Cole JA The appellant is a solicitor who was injured in an accident on 11 January 1987. She was born in 1945 and thus was forty-two at the date of the accident. She had been employed by Messrs Taylor and Scott since 1979 and in the intervening eight years with that firm had risen to the position of an associate partner.

After the accident in January 1987 she resigned from that firm on 30 October 1987 to take up employment with Cutler Hughes and Harris, commencing there on 16 November 1987. She made that change in circumstances where she was being asked to undertake a heavier workload at Messrs Taylor and Scott, and in circumstances where she wished to foster her interest in family law, it being her intention to seek to establish, as it were, a division or practice in that area within Cutler Hughes and Harris. However, she remained with Cutler Hughes and Harris only until December 1988, a period of some thirteen months, when she resigned.

The trial for injuries suffered by her in the accident was heard in April 1993 and resulted in a verdict in her favour in the sum of $558,957. On this appeal a number of matters have been raised and I shall deal with them sequentially.

The first matter which arises involves the rate at which his Honour calculated past and future economic loss. The appellant contended that his Honour should have adopted a higher rate of earning and thus a higher rate of earning capacity, being the rate which the appellant was in fact earning at Cutler Hughes and Harris where she had remained for some thirteen months. The respondent, on the other hand, contended that the rate to be taken should be based on that earned whilst she was employed by Messrs Taylor and Scott for a period of some years.