MANASSEH v DAVID [1995] NSWCA 267

MANASSEH v DAVID

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and COLE JJA 30 March 1995, 6 April 1995

[1995] NSWCA 267

PERSONAL INJURIES — ECONOMIC LOSS — REASSESSMENT OF DAMAGES — plaintiff injured in car accident — trial judge found that plaintiff's working capacity was substantially reduced by the injury sustained as a result of the accident — there was evidence that the plaintiff had worked in various clerical jobs before the accident. However since then the plaintiff had not been working as a clerk but in various entrepreneurial situations in regard to which there was very little evidence before the court upon which the court could form any view of what he had been earning in the years immediately before the injury — trial judge therefore allowed nothing for past and future- economic loss. Held: On the authority of Malec v JC Hutton (1990) 169 CLR 638, the trial judge was bound to consider the chance that the plaintiff, uninjured, would have given up self-employment and returned to a job on wages. In doing so he had to conjecture what the plaintiff would have done had he not been injured, and also, in regard to the time after the trial, both what the plaintiff, uninjured, would have been likely to earn, and injured, would be likely to earn.

Priestley and Cole JJA This is a plaintiff's appeal against the amount of damages awarded him in 1994 by a judgment of Garling DCJ. The plaintiffs claim arose from a car accident in which he was injured in 1979. The plaintiff was then approaching thirty. The proceedings were begun in 1982. Garling DCJ heard these proceedings together with other proceedings by the plaintiff against another defendant arising from a car accident in which the plaintiff had been injured in 1978. In the proceedings concerning the 1978 accident the judge assessed the damages at $7,920 for general damages and interest. In the proceedings concerning the 1979 accident, the judge assessed the damages at $120,583, which was the sum of $90,583 for general damages and interest and $30,000 for out of pocket expenses. He allowed nothing for loss of income either past or future in either proceeding.