COMMONWEALTH OF AUSTRALIA v DE CASTRO [1995] NSWCA 88

COMMONWEALTH OF AUSTRALIA v DE CASTRO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY and MEAGHER JJA and ROLFE AJA 30 March 1995, 28 April 1995

[1995] NSWCA 88

INJURY SUSTAINED DURING EMPLOYMENT — PRIOR INJURY — ASSESSMENT OF DAMAGES EXCESSIVE.

FACTS: The respondent claimed that as a result of a fall sustained in 1985 in the course of her employment in the Australian Army she suffered injuries to her right knee and to her head. The appellant admitted liability. The trial judge found that although the respondent had suffered a knee injury while playing soccer in 1981, the evidence did not disclose the probability of this prior injury becoming symptomatic. The trial judge also found that, although there was no physical cause linking the fall with the respondent's complaint of head injury, the relevant symptoms (seizures) were attributable to the respondent's army service. Damages were awarded on the basis that the 1985 injury was the cause of her knee complaint, and the cause of her seizures. The appellant contended that the trial judge's assessment of damages was excessive.

HELD:

(1) Apart from a torn meniscus, uncontradicted evidence established that the respondent's right knee complaints did not result from the 1985 injury. The appellant had discharged the evidentiary onus of establishing that the respondent's incapacity of the knee, except for the torn meniscus, stemmed from events other than those for which the appellant was liable.

Watts v Rake (1960) 108 CLR 158,

Purkess v Crittenden (1955) 114 CLR 164 considered.

(2) The trial judge having made no findings from which the conclusion could be drawn that the seizures were owing to the 1985 accident, that conclusion of the trial judge was unjustified.

(3) There being no suggestion that the respondent would not continue to be engaged in gainful employment, the trial judge was not justified in finding a future loss of earning capacity in the sum of $70,000.