HAY v HAY [1996] NSWCA 243

HAY v HAY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 22 November 1996, 22 November 1996

[1996] NSWCA 243

MOTOR VEHICLE ACCIDENT — negligence — personal injury — damages — future economic loss — possible effect of injuries suffered on future earning capacity not taken into account

Sheller JA On 30 July 1992 the appellant, Anthony Hay, was injured when travelling as a front seat passenger in a motor vehicle being driven by his brother, the respondent, Mark Hay. While proceeding along Cropley Drive, Baulkham Hills shortly after 2am on that morning, the vehicle hit a tree by the side of the road.

The appellant sued the respondent in negligence. The respondent was not prepared to accept an arbitral award that was made on 24 February 1995 and the proceedings came before Newman J for hearing. Liability was admitted and the parties agreed there should be a deduction of 20 per cent on any judgment for contributory negligence. Newman J assessed damages in an amount of $187,884. This comprised an amount of $10,000 for future medical expenses, $77,550 for non-economic loss, $63,052 for past economic loss, and $37,282 for out-of-pocket expenses. After the deduction for contributory negligence his Honour gave judgment for the appellant in the amount of $150,307.20.

The appellant filed a notice of appeal which covered a number of grounds which are not now pressed. The grounds that are pressed relate to his Honour's alleged failure to make any proper allowance for future economic loss and to make an award for loss of business opportunity.

The appellant was born on 2 July 1959. Before his accident he had had what his Honour described as a commendable work history. After completing his Higher School Certificate in 1976 and a number of tertiary courses, he acquired expertise in insulation and operation of fans used in air-conditioning systems. He worked for a number of employers and reached executive level as a sales executive.