SCHIEBEL v MASON [1997] NSWCA 277

SCHIEBEL v MASON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL and BEAZLEY JJA 13 May 1997, 27 May 1997

[1997] NSWCA 277

Damages — Measure of damages — Loss of earning capacity — Assessment — Self-imposed limitations on employment — Consideration of possibilities — No question of principle.

Powell JA This is an appeal from a Judgment delivered, and verdict entered, by Sidis DCJ in the District Court at Newcastle on 24 July 1996 in proceedings which had been brought by the Respondent against the Appellant to recover damages in respect of injuries which she claimed to have sustained in a motor accident on 28 July 1990 when the car which she was driving was struck by a car driven by the Appellant. Although, originally, the Appellant denied negligence on his part and sought, in addition, to allege contributory negligence on the part of the Respondent, when the proceedings came on for hearing liability was admitted and the only issue for determination was the quantum of damages to which the Respondent was entitled. In the event, her Honour found a verdict for the Respondent in the sum of $91,012.10, the major elements in which were: non-economic loss in the sum of $22,800.00, past economic loss in the sum of $29,517.10 and future economic loss in the sum of $30,000.00. On the Appeal, the Appellant has sought to challenge only the sums allowed for past and future economic loss.

The Respondent was born on 16 August 1970 so that, at the time of the accident on 28 July 1990, she was a few weeks short of attaining her twentieth birthday. At the time of the hearing before Sidis DCJ the Appellant was about a month short of attaining her twenty-sixth birthday. It would appear that the Respondent was born with a congenital condition involving dislocation of the hips which condition was finally diagnosed when she was about 17 months old. She was then treated and placed in plaster and a brace until she was aged about 3 years. In July 1994 the Respondent underwent surgery which involved a total right hip replacement. The learned trial Judge recorded that the need for that surgery was unconnected with the accident which gave rise to the proceedings. At the age of 4 years the Respondent apparently fell and fractured her skull. I record these matters since the learned trial Judge was later to find that the Respondent's continuing complaints of pain and discomfort, despite the absence of any objective clinical findings, were substantially psychologically based, the Respondent's psychological condition having had its basis in the Respondent's childhood problems and existing prior to the accident, the Respondent's psychological condition having been exacerbated by the accident.