BUDGET RENT-A-CAR SYSTEM PTY LTD (T/AS LIVERPOOL RENT-A-CAR) v PHAM [1996] NSWCA 75

BUDGET RENT-A-CAR SYSTEM PTY LTD (T/AS LIVERPOOL RENT-A-CAR) v PHAM

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER (2), HANDLEY (1) and SHELLER (1) JJA 6 June 1996, 6 June 1996 [1996] NSWCA 75

DAMAGES — assessment of — future and economic loss — discount for vicissitudes — general damages — future and potential events — relevance to measure of damages — Malec v JC Hutton Pty Ltd (1989) 169 CLR 638; Robinson v Riley (1971) 1 NSWLR 403

On 20 December 1982, a motor vehicle owned by the appellant was involved in a collision. The respondent a passenger in the vehicle at the time, sustained extensive injuries as a result of the accident. The appellant admitted liability. In proceedings brought by the respondent to recover damages, Mr Acting Justice Slattery gave judgment in the amount of $948,265.78, which included general damages in the amount of $216,000 and damages for future economic loss in the amount of $530,000.

The appellant claimed that his Honour's assessment of damages for future economic loss was erroneous for failing to include a discount for vicissitudes, and that the award of general damages should not have allowed for the possibility that the respondent may have been accepted into medical school.

HELD: 1. While it is common practice, when assessing future economic loss, to subtract 15 per cent from the amount assessed that is not the only permissible way for a judge to allow for vicissitudes. 2. The appellant failed to show that the trial Judge's assessment of damages for future economic loss was wrong. His Honour's findings should not be disturbed. 3. It was appropriate for the trial Judge to consider the chance of the respondent attending medical school in making his assessment of damages. There was no inconsistency between finding that the respondent would not on the balance of probabilities, have gone to medical school, and including the value of the chance lost in the overall award of general damages. Malec v JC Hutton Pty Ltd (1989) 169 CLR 638 (per Handley JA) An appellate Court need not interfere with an assessment of damages at trial which was affected by some errors of principle, if the verdict as a whole was not totally erroneous. Robinson v Riley [1971] 1 NSWLR 403 applied.