NOONAN v AUSTRALIAN NEWSPRINT MILLS LTD [1995] NSWCA 327

NOONAN v AUSTRALIAN NEWSPRINT MILLS LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and POWELL JJA

2 November 1994, 23 August 1995

APPEAL — Admission of fresh evidence — Matters occurring after trial — Quantum of damages for personal injuries — Termination of employment by respondent employer after trial

APPEAL — Practice and procedure — Admission of fresh evidence — Discretion — Principles applicable — Quantum of damages for personal injuries — Termination of appellant's employment by respondent employer after trial

Mahoney JA The plaintiff was injured in circumstances such that the defendant is liable to him in damages. The injuries the plaintiff suffered reduced his working capacity but did not totally disable him from working. On 17 July 1991 Wood J held that the defendant should pay the plaintiff $125,265 of which $65,000 was awarded for, as it has been described, future economic loss. The plaintiff has appealed to this Court against the award and has asked that the damages "for future impairment of economic capacity" be reassessed.

The facts are set forth in the judgment of Powell JA and I shall not recapitulate them.

The plaintiff's argument on appeal may, at the risk of over-simplification, be reduced to the following steps: the learned judge assessed the plaintiffs future economic loss upon a particular basis; that basis was false or has since proved to be false; in such circumstances the Court of Appeal can intervene; and, in the circumstances of this case, the Court of Appeal should intervene. The submissions which have been made upon the appeal may, I think, be conveniently dealt with by reference to these matters.

1. THE BASIS ON WHICH THE JUDGE ASSESSED DAMAGES FOR THE PLAINTIFF'S FUTURE ECONOMIC LOSS:

In principle, the loss in question is loss of economic capacity and damages are awarded for loss of that capacity: see Bresatz and Anor v Przililla and Anor (1962) 108 CLR 541 at 542-543 per Windeyer J; McGregor on Damages (1988) 15th ed at par 1450. However, it is accepted that, in assessing such damages, the Court can and should have regard to the actual loss which the plaintiff will or will be likely to suffer. In the present case, the injuries suffered by the plaintiff resulted in his being "only fit for work that does not require strenuous or repetitive bending, twisting or lifting or the maintenance of a static posture for lengthy periods, whether that be sitting or standing". The result is that, as the judge found, "he is disadvantaged in his present employment, because his range of work is limited, and he is obviously at a substantial disadvantage in the labour market". Accordingly, he had a "reduced attractiveness... as a worker, both to the defendant and to other employers" and "he may be disadvantaged in the event of redundancies being forced upon that employer, by deteriorating or changing economic conditions".