RAYNER v McQUEEN [1997] NSWCA 260

RAYNER v McQUEEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, BEAZLEY and STEIN JJA 15 July 1997, 15 August 1997

[1997] NSWCA 260

Damages — personal injury — MVA — Contributory negligence — within broad discretion. Non-economic loss — proportion of worst case. Past loss of earnings — earnings on which calculation based should be typical. Future loss of earnings — assessment disproportionate to the circumstances.

The appellant was struck by a motor vehicle while walking on the roadway at night. He was found to have been guilty of contributory negligence. He challenged this finding and the percentum degree assessed by the trial judge. The appellant suffered significant injuries, but challenged the amounts awarded for non economic loss, and past and future loss of wages as excessively low.

Held:

Degree of contributory negligence assessed by the trial judge was within his broad discretion. The degree of non-economic loss assessed as a proportion of a worst case was disproportionate to the circumstances. Past loss of wages - previous wages on which calculation is based should be typical, or adjustment made. Future loss of earnings - trial judge's assessment was wholly disproportionate to the circumstances.

Pennington v Norris (1956) 96 CLR 10 applied Gamser v Nominal Defendant (1977) 136 CLR 145 applied Nicholson v Nicholson (1994) 35 NSWLR 308 referred to.

Stein JA This is an appeal from a decision of Pain DCJ delivered in the District Court on 4 April 1995. His Honour awarded the plaintiff (appellant) $101,992.42 for personal injuries sustained in a motor vehicle accident which occurred on 2 February 1991.

There is no issue that the defendant (respondent) was negligent in failing to keep a proper lookout. However, his Honour found the appellant guilty of contributory negligence, which he assessed at 20%. Both of these findings are challenged.