SMALL v KUCLKAKYUZ [1995] NSWCA 435

SMALL v KUCLKAKYUZ

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, CoLe JA and ROLFE AJA 16 March 1995, 16 March 1995

[1995] NSWCA 435

DAMAGES — general damages attributability to injury and_ pre-existing degenerative condition — trial judge allows $40,000.00 for disabilities over ten years — whether appealably inadequate — held (by maj): It was not.

DAMAGES — quantum of — whether appealably inadequate — injury to plaintiff's back and neck — aggravation of pre-existing but non-symptomatic condition — challenge to past economic loss and future loss of economic capacity — challenge to general damages of $40,000.00 — consideration of evidence of ex-wife as to pre- and post-injury condition — evidence of stiffness, restriction of movement, inability to perform physical exercise, interference with sleep and reduction of capacity to engage in sport and hobbies as well as disturbance of marital relationship — held: (1) (By the Court): The challenge to the judge's findings on past and future economic loss was without substance; (2) (per Cole JA and Rolfe AJA; Kirby P dissenting): The allowance of $40,000.00 for general damages was within the range available to the primary judge and although (per Rolfe AJA) it was towards the lower end of the permissible range, it did not warrant disturbance by the Court of Appeal; (3) Judgment sustained and appeal dismissed.

Cole JA The appellant, Peter Eric Small, was born on 9 December 1936. He was thus aged 45 years at the time of an accident in which he was involved on 2 August 1982 and was 57 years of age at the time of the hearing in July 1994.

The matter before the court on this appeal relates to quantum only.

The appellant described his position prior to and after the accident as being to the effect that he was both required to and able to undertake heavy manual work in his capacity as a bartender such work involving lifting of kegs, cartons of beer, spirits and the like.