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. 5. To produce a future economic loss of approximately $200,000 involves economic loss at the rate of approximately $ 190 per week net to age 65. The evidence did not support such a loss, and such a loss would be inconsistent with the evidence of the respondent's ability to perform arduous work. In my opinion the appellant's arguments fail. Accepting that it was open to the jury to award $100,000 for general damages, which the appellant does, there remains a figure of $204,288 for future economic loss. 2 UNREPORTED JUDGMENTS Whilst there was evidence that the economic loss at the date of trial was $135 per week, there was evidence available to the jury to find that, uninjured, she may have earned $305 per week. Further, there was evidence that her current employment was aggravating her existing back injury and that she would "probably be better off giving up her current job which I think is only aggravating her previous back injury"!. Further there was evidence open to be accepted by the jury that spinal degenerative disease caused by the accident and likely to reduce further her capacity to work would probably affect her in her late thirties or early forties?. If the jury accepted that evidence they may well have assumed a complete incapacity to work from her late thirties or early forties resulting in significant economic loss such that it could not be said that a figure of $190 economic loss per week averaged over her whole working life is regarded as excessive. In considering this appeal the Court is obliged to adopt favourably to the respondent any inferences available which might support the verdict. Adopting that approach in my opinion the appeal fails. In my opinion the appeal should be dismissed with costs. Priestley JA I agree with the reasons of Cole JA. Dunford AJA I also agree with the reasons of Cole JA. Priestley JA: The orders will be as proposed by Cole JA, the appeal is dismissed with costs. COUNSEL: Appellant: C Hoeben SC Respondent: B Gross QC/CA Rimmer SOLICITORS: Appellant: Pieterse and Pieterse Respondent: McIntosh McPhillamy and Co 1. Appeal Book (Evidence of Dr Carr), at 82J. 2. Appeal Book (Evidence of Dr Burke), at 53-54