McGRATH v NRMA INSURANCE LTD [1996] NSWCA 351

McGRATH v NRMA INSURANCE LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, COLE JJA and Simos AJA 27 August 1996, 27 August 1996 [1996] NSWCA 351

DAMAGES — assessed to usual retiring age — variation of trial judge's finding on retiring age and deduction for vicissitudes of life.

Cole JA This is an appeal against an assessment of damages made by Hulme J in a judgment delivered on 2 April 1996. The factual circumstances material to that assessment are set out in that judgment and I will assume that any person interested in this judgment has access to the judgment of Hulme J. Accordingly, I will not repeat the factual findings there made.

Three matters were argued on appeal.

First, it was contended that his Honour's assessment pursuant to s79(2) Motor Accidents Act 1988 that the amount of damages to be awarded for non-economic loss was thirty per cent of the maximum amount which may be awarded was so wholly erroneous as to be appellably wrong!. The appellant's contention at trial and on appeal was that the percentage should be at least thirty-five to forty per cent. His Honour found that the appellant suffered "significant psychological problems and headaches", problems which were likely to continue, but in the light of the comparatively minor physical injuries assessed the proportion at thirty per cent.

In my opinion, that percentage is within the trial judge's discretionary range and appellable error has not been demonstrated.

Second, it was contended that his Honour erred in calculating loss of future earning capacity only until the age of fifty-five years. It was contended that his Honour should have determined that loss based upon the appellant working until at least sixty years and probably until sixty-five years.

Hulme J's finding was:

"The plaintiff said that she had no plans for early retirement. However, it seems to me that it would be appropriate to calculate damages under this head upon the assumption that the plaintiff would have continued to work until age fifty-five and not older. Her evidence does not suggest a mixed intention or reason to work until later than that age. Furthermore, although I do not need to rely on this, her husband is about ten years older than the plaintiff and it may well have been that they would have sought to have retirement time together well before he reached seventy-five. Joint activities of a similar nature inspired them to postpone having children."2