FULLER v GALVIN [1995] NSWCA 157

FULLER v GALVIN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and POWELL JJA 29 March 1995, 7 April 1995

[1995] NSWCA 157

DAMAGES — personal injuries — past financial loss — future loss of economic capacity — injury to actor with intermittent employment — whether allowances made by trial judge justified by objective facts of past earnings — HELD: (by maj): No disturbance.

DAMAGES — personal injury — appeal proper approach to — whether analogous to discretionary decision — distinction between computation of amount and review of inferences based on evidence — role of appellate court. Moran v McMahon (1985) 3 NSWLR 700 (CA) discussed.

DAMAGES — personal injuries — past financial loss — future loss of economic capacity — review by Court of Appeal of — plaintiff aged 35 with intermittent pre-accident employment industry in music bands and theatre, very low objective pre-accident earnings — evidence of activities in theatre — primary judge (Newman J) concludes that appropriate basis for calculation of economic loss was by reference to average earnings of an actor — calculates past and future economic loss by reference to that assumption — defendant contends that resultant damages appealably excessive — on appeal — HELD: (Mahoney JA and Powell JA; Kirby P dissenting): The calculation of economic loss was difficult in the case but the approach taken was open to the primary judge and should not be disturbed. Government Insurance Office of New South Wales v Cox (1976) 50 ALJR 559 (HC) applied; House v The King (1936) 55 CLR 499 considered; Moran vy McMahon (1985) 3 NSWLR 700 (CA) discussed. DAMAGES — personal injuries — discretionary features of — role of appellate court — whether review analogous to discretion — differentiation between quantification exercise and drawing inferences from the evidence as the foundation for the quantification — proper principles of restraint and of rehearing considered. House v The King (1936) 55 CLR 499; Moran v McMahon (1985) 3 NSWLR 700 (CA) considered.