REEDY v HARRIS and ANOR [1997] NSWCA 261

REEDY v HARRIS and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY and BEAZLEY JJA 23 July 1997, 17 September 1997 [1997] NSWCA 261

Motor vehicle accident — Damages — calculation of post-accident earnings — Lost earning capacity — Assessment of past economic loss — Factors relevant to assessment — Deductions.

The appellant was injured in a motor vehicle accident in which he suffered a significant injury to his left knee. This greatly reduced his earning capacity. He appealed against three aspects of the award of damages by the trial judge: (1) the deduction of $5,000 in respect of post-accident earnings; (2) the determination of his lost earning capacity; and (3) the assessment of past economic loss. The finding that the appellant had failed to mitigate his damages was not challenged on appeal.

Before the accident, the appellant was consistently employed. After the accident he was out of work for approximately five months. He was then employed sporadically by various employers. He left many of his jobs due to the pain in his left knee.

The appeal to the Court of Appeal was by way of a rehearing (s75A of the Supreme Court Act 1970 (NSW)), and the Court undertook a reassessment of the damages which should have been awarded.

In the assessment of the appellant's past economic loss, the trial judge found that the appellant was unemployable for a period of almost 70 weeks, and then would have regained a level of fitness for employment within 12 months of embarking on a Commonwealth Rehabilitation Service course. However, the trial judge failed to make allowance for loss of earning capacity during the period of rehabilitation. The Court of Appeal reassessed this, and treated 40 weeks of the 12 month period of rehabilitation as a period in which the appellant would not have earned income, and the balance of the 12 month period as one in which he would have regained his ability to earn income. The period of 70 weeks as found by the trial judge was therefore increased to 110 weeks by the Court.