MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD v HOGAN and ORS [1996] NSWCA 361

MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD v HOGAN and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and COLE JJA 9 May 1996, 10 May 1996 [1996] NSWCA 361

NEGLIGENCE — _ s151Z(2) Workers Compensation 1987-contributory negligence-reassessment of non-economic damages-indemnity.

Priestley JA I agree with what has been said by Cole JA in all respects except one.

That concerns the amount awarded by Judge Christie under s79 of the Motor Accidents Act. I agree with the submission of the appellant that Judge Christie should have given some reasons indicating how he arrived at the figure he awarded. However, on reading the evidence in chief of Mr Hogan I think I understand what led his Honour to make what the other judges in this appeal think was an appellably over-generous award.

Since I am in the minority there is little point in elaborating my own reasons for disagreeing with the other judges. In short, they are that Mr Hogan at the age of thirty-one, father of young children, and whose work and life lay in a country district, lost the sight of an eye, leaving him in the following position. His ability to drive motor vehicles and farm machinery is significantly diminished. He has given up driving on public roads at night in the belief that it is dangerous for him to do so. He has greatly restricted any such driving in daylight. His father, for example, is no longer willing to be a passenger while he is driving. To a person in his position the ability to drive is a matter of considerable importance for his general way of life, quite apart from his economic life. His ability to play various sports and to enjoy even simple games involving throwing, catching and hitting with his children is impaired. His self confidence has suffered. His self esteem has fallen. The kind of work he can get is such that the danger of injury to his remaining eye is greater than that of people engaged in sedentary ways of life.