TOWNER v TOWNER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE and MEAGHER JJA 6 March 1995, 6 March 1995 [1995] NSWCA 473 DAMAGES QUANTUM FACTS: Plaintiff/appellant appealed decision on quantum damages awarded against personal injuries sustained motor vehicle accident. HELD: (1) Where no adverse findings made by Court below as to the credibility of the plaintiff, assume credibility remains untouched and in these circumstances the award of $10,000 for future economic loss is so small as to represent a failure to have regard for the evidence and is outside the permissible range. Meagher JA This is an appeal by the plaintiff/appellant on the ground of quantum. The appellant was involved in a motor car accident admittedly due to the respondent's negligence when he was thirteen years of age. He had worked a great deal in the eleven years between the accident and date of trial in numerous jobs. He had been employed by a service station, the army, Wormald Security and in a number of other jobs. He had also been the owner-driver of a truck. In the accident the appellant suffered various injuries, the only serious one being an injury to his left knee and leg. No adverse remark was made by his Honour and one can assume that his credibility remains untouched. Likewise the medical evidence called must be accepted. The gist of that was that he would always have trouble standing or walking or, indeed, kneeling. There was also evidence that his legs would deteriorate in the future. He had thirty-eight years of working life left at the date of trial. Of the eleven years which elapsed between the date of accident and the date of trial two years were represented by unemployment due to the accident. His Honour gave a verdict for the appellant in the sum of $80,000 made up, as to past economic loss $10,000; interest on that $7,000; general damages $45,000; interest on that $8,100; and future economic loss $10,000. The appellant appeals against the award by his Honour of the future economic loss of $10,000. In my opinion the appellant's submissions must be accepted in that regard. The amount of $10,000 is not only on the small side, but so small as to represent a failure to have regard to the evidence and is outside the permissible range. Counsel for the respondent pointed out, and it was undoubtedly true, that there was a remarkable lack of specificity in the evidence of the various jobs the appellant had done and there was very little evidence as to precisely how much, either net or gross, had been earned in each of those jobs. However, the plain facts which cannot be controverted were that the appellant lost two years of employment between the date of accident and the date of trial and with thirty-eight years to go; his Honour found he had a permanent disablement, and that permanent disablement was likely to deteriorate if it did not remain stationary. There was no suggestion of it improving. 2 UNREPORTED JUDGMENTS Under those circumstances the amount of $10,000 seems unacceptably small. In my opinion it should be replaced by the sum of $35,000, namely $25,000 extra. I cannot justify that by any precise mathematics in view of the state of the evidence, but in my view it is a fairly global assessment of what the future economic loss would be. I therefore propose that the judgment below be set aside and in lieu thereof there be entered judgment for the appellant in the sum of $125,100 to take effect as from the date of his Honour's judgment. Clarke JA I agree. The respondent is to pay the appellant's costs. (1) Appeal allowed with costs. (2) Judgment below set aside and in lieu thereof judgment entered for the plaintiff for $125,100. (3) Judgment to take effect from date of judgment below, 25 February 1994. COUNSEL: Appellant: A LIDDEN Respondent: DJ RUSSELL SOLICITORS: Appellant: MAXWELL BERGHOUSE and IVES Respondent: GM MEADOWS