PARKINSON v DUMBLETON and ORS [1996] NSWCA 422

PARKINSON v DUMBLETON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COMMON LAW DIVISION

PRIESTLEY, SHELLER and COLE, JJA 14 May 1996, 15 May 1996

[1996] NSWCA 422

MOTOR VEHICLE ACCIDENT — damages re-assessment — discretion in non-economic and future loss.

The appellant was involved in a motor vehicle accident on 24 June 1994, and suffered serious injuries to his right elbow and shoulder. He underwent extensive treatment which resulted in severe scarring to his arm and his abdomen. Due to the severity of his injuries, he was unable to resume his employment as a fitter and machinist working underground in the mines, and could only perform 'select light duties'. He also developed post traumatic stress disorder and depression as a direct result of his injuries.

The appellant brought proceedings against the respondents to recover compensation for non-economic and future economic loss. Master Greenwood gave judgment on 28 June 1995 in the amount of $268,385, being $77,000 for non-economic loss and $92,276 for future economic loss. The appellant submitted that the Master's assessment of non-economic loss at 35 percent of a most serious case was inadequate, and that his residual earning capacity should have been assessed at nil, having regard to his age, his physical and psychological injuries, and the depressed state of the open labour market.

HELD:

1. (per Priestley and Sheller JJA) The Master's assessment of non-economic loss at 35 percent of a most extreme case was outside the range of exercise of a sound discretion. It failed to adequately account for the degree of mental suffering occasioned to the appellant by his injuries and by the loss of employment.

(per Cole JA dissenting) The Master's finding was within but at the bottom of the range of his discretion. An increase of the figure would be inappropriate, since discretionary assessments of this kind are by their nature imprecise.