CALDWELL v CALDWELL (by his next friend CALDWELL) [1996] NSWCA 88

CALDWELL v CALDWELL (by his next friend CALDWELL) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER and COLE JJA 30 August 1996, 30 August 1996

[1996] NSWCA 88

MOTOR VEHICLE ACCIDENT — assessment of damages — personal injury — psychological impairment — whether award of non-economic loss appropriate

Sheller JA Ex tempore

The appellant, Sharon Lee Caldwell, appeals from a judgment of his Honour Judge Ducker of 22 September 1995 in the District Court at Glen Innes. The plaintiff, who was born on 11 May 1984, by his next friend, sued his mother, the driver of a motor vehicle in which he was a passenger, when it was involved in a very serious motor vehicle accident on 28 April 1993. At that time the plaintiff was almost nine. Two adult passengers in the motor vehicle were killed and the plaintiffs younger sister, Gemma, later died in hospital as a result of her injuries.

His Honour Judge Ducker found a verdict of $131,145.25 for the plaintiff. After making a deduction of out of pocket expenses of $8,862.25, the damages awarded were made up of an amount of $88,800 for non-economic loss, (his Honour regarded the plaintiff as 40 per cent of a most extreme case) $30,000 for loss of future earning capacity, $3,000 for future medical expenses, the amount of out of pocket expenses to which I have referred, and travelling expenses of $483. The appellant challenges the amounts allowed for non-economic loss, future loss of earning capacity and future medical treatment expenses on the basis that the amounts awarded were excessive.

As I have said the plaintiff was almost nine at the date of accident. He suffered fractures of the left radius and ulna, the right tibia and fibula and of the second and third metacarpal heads of the right hand. He also suffered multiple lacerations and permanent scarring behind his right ear, which his Honour said was not particularly serious and at the present time is hidden by a full head of hair.