COMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI [1996] NSWCA 114

COMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, HANDLEY and SHELLER, JA 9 June and 18 August 1995, 2 February 1996

[1996] NSWCA 114

DAMAGES — paraplegic — young female plaintiff challenge to allowances for damages in assessment case — proper provision for discount for vicissitudes — pharmaceuticals — catheterisation wheelchairs — computers — domestic equipment burglar alarm — swimming pool — building repairs transport requirements — home care — handyman services — vacation and travel — lowered prospect of marriage (or like relationship) — management of funds — Marsland v Andjelic (1983) 31 NSWLR 162 (CA); Nicholson v Nicholson (1994) ATR 81-311, consd.

DAMAGES — assessment of — young woman aged 18 rendered paraplegic in motor vehicle accident — calculation of heads of damage — trial judge (Barr AJ) awards $2,082,865.90 — upon appeal by insurer and cross appeal by plaintiff held: (Sheller JA; Kirby P and Handley JJA concurring) (Allowing appeal and cross appeal); Upon a recalculation of the appellant's damages, judgment should be entered in her favour in the sum of $1,985,881.90 in substitution for the sum entered at trial to take effect from 28 February 1995, but with no order as to the costs of the appeal or cross appeal.

DAMAGES — paraplegic — young female University student with good employment prospects — proper approach to calculation of damages — consideration by Sheller JA (Kirby P and Handley JA concurring) of proper approach to heads of damage;

(1) Although the discount for vicissitudes in the calculation of probable future earnings but for injury is a matter of assessment and conventionally 15 percent is allowed, discretion in calculating the ordinary

contingencies of the particular case must be left to the trial judge, but a discount of 5 percent was inappropriate and a further reduction for vicissitudes of 10 percent in all would have been more appropriate;