NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v JONES [1995] NSWCA 333

NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v JONES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBy P, CoLe JA and ROLFE AJA 28 March, 4 April 1995 [1995] NSWCA 333

DAMAGES — motor vehicle accident — serving police officer injured in motor vehicle collision — common law entitlement — pre-accident and post-accident trauma — objective evidence of degeneration of the spine — whether, but for the subject motor vehicle accident, the degeneration would have caused incapacitating symptoms with economic consequences — whether incapacitating symptoms complained of were solely referable to the subject trauma or to pre-and post-accident trauma — primary judge (Barbour DCJ) allows plaintiff full undiscounted past financial loss — discounts future loss of economic capacity by 20% (ie 15% + 5%) — provides "cushion" for post-retirement economic loss of $30,000 — allows $100,000 for general damages — on appeal to the Court of Appeal against the judgment, allegedly excessive — held: (1) (by the Court): The judgment was excessive and authorised disturbance by the Court of Appeal; (2) (by the Court): The Court of Appeal could safely and properly substitute its own reassessment of the damages; (3) (Rolfe AJA, Cole JA concurring; Kirby P contra): The judgment sums should be reduced (a) as to past economic loss by an overall deduction of 15%; (b) as to future economic loss, by a deduction of 40%; (c) as to post-retirement cushion, by deletion of the item; and (d) by reduction of general damages to $70,000, all to take into account the possibility that pre-injury vulnerability of the spine would, even without the subject trauma, have caused disabilities and economic loss to the plaintiff.

Kirby P. The facts are set out in the judgment of Rolfe AJA.

In the District Court, Barbour DCJ found a verdict, and entered judgment, in favour of the respondent as follows: