TOURISM COMMISSION OF NEW SOUTH WALES v CALDWELL [1995] NSWCA 472

TOURISM COMMISSION OF NEW SOUTH WALES v CALDWELL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and COLE JJA and DUNFORD AJA 9 November 1995, 9 November 1995 [1995] NSWCA 472

ASSESSMENT of damages — no question of principle

Cole JA This is an appeal against the quantum of a verdict awarded by a jury for personal injuries. The jury awarded a verdict in favour of the plaintiff in the sum of $360,048. After appropriate adjustments, judgment was entered in the sum of $363,709.

The appellant's argument is as follows.

1. The following past and future expenses and past wage losses were undisputed:

Past out-of-pocket expenses $330.00 Past wage loss $35,000.00 Future physiotherapy and medication for 50 years $20,430.00

($15 X 1362)

TOTAL: $55,760.00

2. Thus the jury must have awarded $304,288 for future economic loss and general damages.

3. The economic loss being suffered by the plaintiff at the date of trial was $135 per week being the difference between a comparable uninjured income earning capacity of $305 and $170 in fact being earned as a check-out operator at Woolworths. Allowing $135 per week to age 65 and deducting 15% for vicissitudes, future economic loss calculates to $144,011. Thus, on that assumption, the jury must have awarded in excess of $160,000 for general damages. Such a sum is appellably excessive.

4. Alternatively, an appropriate award for general damages in November 1992 for a 23 year old female plaintiff with a severe disc injury who did not suffer constant back pain, and who was at the date of trial able to manage at home with a two year old child with some assistance from her husband, and was also able to work part-time would be in the order of $75,000 to $100,000. Upon that assumption the jury's award for economic loss must have been in excess of $200,000, and that sum was appellably excessive.