PIGRAM v JENKINS and ANOR [1997] NSWCA 247

PIGRAM v JENKINS and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P and PRIESTLEY JA 14 May 1997, 14 May 1997

[1997] NSWCA 247

Motor accidents act — damages — future economic loss MOTOR ACCIDENTS ACT — AWARDING OF DAMAGES — appeal against decision of trial judge not to award damages for future economic loss.

Held: It was a real possibility that the plaintiff might need to seek work in the future which would require considerable use of his left leg and that the continuing effects of the accident would affect his ability to perform work of that land. Therefore, the trial judge should have allowed some amount for future economic loss.

Medlin v State Government Insurance Commission (1995) 182 CLR 1. Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.

Priestley JA This appeal is from a judgment of O'Reilly DCJ given in Wagga Wagga, immediately after the hearing of a claim for damages which arose from the plaintiff having been knocked off his bicycle by a car on 5 December 1991. The plaintiff was then 13. His left leg was injured in the accident.

From some of the medical evidence, it appears that he was left hand dominant, although not exclusively left handed.

The principal injuries to his left leg were a fractured distal tibia and fibula. He was in hospital for some time and operated on by a surgeon at Wagga Wagga Base Hospital. He commenced his proceedings on 24 February 1995. The defendant admitted liability. When the proceedings came on for hearing before O'Reilly DCJ, the only witness to give evidence was the plaintiff. He was then eighteen.

In his evidence in chief, he described fairly generally the consequences to him of the injury to his leg. He described continuing episodes of pain and tended to speak of pain and aching in the leg. He also gave evidence of restriction of his sporting and other physical activities, resulting from the aching and pain that he felt in the leg. In some answers he became more specific about the locality of the pain which appears to have been, according to his evidence, centred mainly in his left ankle. He had given up some sport because of the problems he experienced with the ankle, although he had also continued some sporting activity. He volunteered, for example, that he had played indoor cricket the night before the hearing of his case.