KAWASAKI MOTORS PTY LTD v HOGG [1995] NSWCA 233

KAWASAKI MOTORS PTY LTD v HOGG SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and COLE JJA 30 March 1995, 30 March 1995

[1995] NSWCA 233 Damages — No question of damages.

Cole JA This is an appeal from a decision of his Honour Judge O'Reilly delivered on 11 October 1994. The respondent, Paul Anthony Hogg, was injured in circumstances in which the appellant became responsible for the consequences of those injuries. The trial judge awarded damages to the respondent. In particular, he awarded the sum of $40,000 for general damages, the sum of $50,000 for the future loss of income earning capacity, the sum of $5,000 for the cost of a possible future operation, and the sum of $4,700, being the wage loss which the respondent may suffer if he had the future operation which his Honour contemplated.

The respondent in the accident suffered significant injuries to his ankle. In the result, he suffers from an early onset of osteo-arthritis which restricts movement in the ankle. There was medical evidence before the trial judge that in future it may be necessary for the respondent to have arthrodesis, which would have the effect of fixing the injured ankle. There was also evidence that that will impede his employment, he presently being employed as a maintenance man. The trial judge found that, on the balance of probabilities, that operation would be required some time in the future.

He also found that there would be an impact on his future earning capacity. The trial judge calculated the loss attributable to the reduction in future earning capacity upon the basis of an assessment of loss of $100 per week in that income earning capacity, which figure his Honour deferred for some eight years, being presumably the time at which his Honour thought the operation might occur. On that basis a sum of $50,000 was awarded for future loss of income earning capacity.