KRUF v MILLS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ and ROLFE AJA 8 June 1995 [1995] NSWCA 251 ASSESSMENT OF DAMAGES Appeal from decision from District Court judge assessing damages for personal injuries resulting from negligent driving of a motor vehicle - no error demonstrated - no question of principle involved. Gleeson CJ This is an appeal from a decision of his Honour Judge Patten who, in proceedings in the District Court in February of this year, awarded the plaintiff damages in the amount of $86,827.63 for personal injuries resulting from negligence of the driver of a motor vehicle. His Honour assessed the respondent's damages at $91,397.50 but reduced that sum by 5 per cent to allow for a finding of contributory negligence. The components of the damages as assessed were as follows. The respondent's non-economic loss was assessed at $65,100. That was based on an assessment of 30 per cent as the appropriate proportion of the maximum amount that could be awarded pursuant to s79(2) of the Motor Accidents Act. Second, out-of-pocket expenses were agreed at $6,596.30. Third, it was agreed that the plaintiffs economic loss amounted to $4,701.20. Fourth, as a cushion or buffer in relation to diminished earning capacity in the future the judge allowed $15,000. This appeal is brought only in relation to the assessment of damages and it is the first and fourth of the amounts mentioned that are in contest. The respondent was born on 28 October 1969. The motor vehicle accident the subject of the proceedings occurred on 26 November 1992. At the time the respondent was aged twenty-three. The respondent was a passenger in a motor vehicle driven by the first appellant which ran off the roadway. The people in the vehicle, including the appellant, had been drinking and that was the basis for the finding of contributory negligence. In November 1992 at the time of the accident the respondent was employed as a draftsman by the Gosford City Council. His duties required him to work both in the council's office and in the field. The car in which the respondent was a passenger was quite seriously damaged in the accident. It was necessary for the Fire Brigade officers to cut the respondent out of the car. He was in a semi-conscious state when he was admitted into Gosford Hospital where he remained until 7 December 1992. Whilst in hospital surgery was performed on the left leg and pins were inserted in both the upper and lower parts of it. His left foot was also injured. He suffered abrasions to his face and other bruises. When he was discharged from hospital the respondent was unable to walk without crutches for two and a half months. The left leg continued to be painful and swollen. He underwent physiotherapy. The respondent was away from work for about three months. His first attempt to return to work in January 1993 was unsuccessful. After the respondent ultimately returned to work he continued in his previous employment until May 1994 when further surgery was performed to remove the pins from his legs. Following this 2 UNREPORTED JUDGMENTS surgery he remained in hospital for five to six days. After discharge from the hospital in May 1994 the respondent remained on crutches for two to three weeks. At the time of the trial he said his left leg continued to ache if he walked for a long period or did heavy exercise. He experiences on occasion swelling around his ankle and cramps in his left calf. Prior to the accident the respondent was keen on snow skiing and basketball. The future of his snow skiing is uncertain and he is unable to play basketball. He is significantly scarred on his left leg and ankle. There was a variety of medical evidence as to whether the respondent had significant residual disability. On this matter Judge Patten preferred the evidence of Dr Searle who said: "Considering the severity of the injuries he has a remarkably good result. However his left leg is still swollen and weak. He is unfit for work which requires prolonged standing, carrying weights, walking over uneven surfaces, kneeling, or having unusual agility. With regard to prognosis there may be a little further improvement as he uses his leg more freely, but any improvement will be only slight." The evidence of Dr O'Malley was somewhat more favourable to the defendant. He said: "His residual disability is minor, perhaps S per cent of the function of his left leg as a whole. This will be permanent and it is unlikely to deteriorate. Nor will he be subject to the risk of the development of degenerative disease of any of the joints in his left leg." Judge Patten said he had no doubt on the evidence that the respondent's incapacity to lead a normal life had been significantly impaired by the accident. The trial judge applied no erroneous principle of law. He was entitled to accept and apply the evidence of Dr Searle. He was also entitled, as he did, to accept the respondent as a witness of truth who was not exaggerating his evidence. The allowance of a cushion or buffer in respect of diminished earning capacity in an amount of $5,000 was not unreasonable having regard to the respondent's age and the nature of his occupation involving, as it did, the field work. The assessment of the case as involving 30 per cent of the maximum amount that might have been awarded under s79 of the Motor Accidents Act is certainly open to argument. It strikes me as rather generous. On the other hand I find it impossible to conclude it was beyond the range of a proper discretionary judgment. The appeal should be dismissed with costs. Rolfe AJA I agree with the reasons of the Chief Justice and with the orders he proposes. Gleeson CJ The order of the court is that the appeal will be dismissed with costs Appeal dismissed with costs.