HO v GARLING [1996] NSWCA 247

HO v GARLING

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA, COLE JA and Simos AJA 28 August, 11 September 1996

[1996] NSWCA 247

Motor Vehicle Accident — Award of Damages for Non-Economic Loss and/or Loss of Income Earning Capacity of Plaintiff Claimed to be Excessive — Evidence Available Upon Basis of Which It Was Open to Trial Judge to Award Such Damages — Trial Judge's Findings Not Disturbed.

Sheller JA. I agree with Simos AJA. Cole JA. I agree with Simos AJA.

Simos AJA. The Appeal

On 20 September 1993, the plaintiff (respondent) was the driver of a motor vehicle which was stationary in traffic in Burns Road, Wahroonga, when a motor vehicle driven by the defendant (appellant) collided with the rear of the plaintiff's vehicle quite violently. The plaintiff suffered personal injuries as a result of the collision. The liability of the defendant (appellant) for the accident was admitted and the plaintiff's claim for damages against the defendant was heard by his Honour Judge Nash in the District Court at Gosford on 6 and 7 March 1996. His Honour delivered judgment on 8 March 1996and entered a verdict in favour of the plaintiff for $64,697 with costs. The verdict included a sum for out of pocket expenses which were agreed at $3,647. The verdict also included an agreed sum of $800 for past loss of earnings, as claimed, and, in addition, 'a buffer for future loss of earning capacity' of $15,000. The verdict also included the sum of $45,250 in respect of non-economic loss which his Honour assessed at 25% of a most extreme case.

In this appeal from his Honour's judgment the appellant (defendant) submitted that the verdict was excessive in that the amount awarded for future loss of earning capacity should have been $5,000 whilst the amount awarded for non-economic loss should have been 15% of a most extreme case which, after the statutory deductible, amounted to $15,750.