McLEAN v ROWEKAMP [1995] NSWCA 287

McLEAN v ROWEKAMP

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ, PRIESTLEY JA and COLE JA

10, 17 August 1995

[1995] NSWCA 287

DAMAGES — Personal injuries — no issue of principle.

Gleeson CJ. I have had the benefit of reading in draft form the judgment of Cole JA.

I agree with the orders proposed by his Honour, and with his reasons for those orders.

Priestley JA. I agree with Cole JA.

Cole JA. This is an appeal from a decision by Grove J delivered on 6 April 1995 in which his Honour awarded the plaintiff respondent Renata Rowekamp damages in the sum of $60,374 together with costs on an indemnity basis from 14 December 1994. At the hearing liability was not in issue. The award of damages was made up as follows:

Out of pocket expenses: $ 1,759.00 Non economic loss: $25,900.00 Economic loss: $25,000.00 Interest: $ 1,715.00 Total: $60,374.00

On this appeal the appellant defendant has challenged the sum of $25,000 for economic loss which comprised $7,000 for past economic loss and $18,000 for futureeconomic loss. In addition it has challenged the awarding of $1,715 interest. The integrity of the award of indemnity costs depends upon the outcome of the appeal in respect of the above matters.

ECONOMIC LOSS

The appellant was injured on 5 November 1991, suffering a ligamentous whip lash injury. She was then aged 47 years, had four adult children and had been divorced in June 1991. She was 51 at the trial.

Grove J implicitly found that the respondent was incapable of performing part-time work in consequence of her injuries suffered in the accident. The major issue at the trial, and on the appeal, was whether the diminution in her earning capacity was or may be productive of financial loss, it being argued by the appellant that she had not established that her work capacity was saleable. It is clear that to recover damages for diminished earning capacity it is necessary for