VDS ENGINEERS PTY LIMITED v Skele SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL COLE JA 13 October 1997 [1997] NSWCA 330 Cole JA. Application has been made by notice of motion on behalf of the defendant/appellant for a stay in respect of a judgment delivered by Newman J on 10 July 1997. His Honour awarded the plaintiff, who suffered a significant injury, the sum of $706,620.66. The manner in which that sum is derived is set out in the Schedule of Damages Form 61B which is attached to the affidavit of Andrew Ross Miller in support of the application. The appellant wishes to challenge five matters by way of appeal. General damages were awarded in the sum of $151,000 (I shall use round figures). The appellant contends that should be $108,000. That is, not 70% but 50% of a worse case scenario. In relation to future Griffiths v Kerkemeyer expenses, the competing contentions are a judgment of $72,000 and the appellant's contentions of $24,000. The difference depends upon awarding three hours per week handyman work allowed by the trial judge and one hour for which the appellant contends. Thirdly, the cost of computers. The judgment allowed some $67,000 whereas the appellant contends it should be approximately $7,000. In respect of future economic loss the difference is about $125,000, the judge having allowed $325,000 and the appellant contending it should be approximately $154,000. This is major item which is the subject of the appeal. There are consequential loss of superannuation benefits of a difference between the judgment f $57,000 and the appellant's contention of $12,000, namely $45,000. In relation to future economic loss there was a clear finding by the trial judge that the respondent would have been likely to have earnt at least $600 per week as a metal worker. His disabilities rendered that not possible. The trial judge made an assessment that the economic earning capacity which remained was in the order of $200 per week, and thus awarded approximately $400 per week from the date of trial, the respondent being some 19 years of age at that time. I have read the judgment of Newman J. It seems to me that the prospects of the appellant succeeding in the grounds of appeal which it wishes to raise are not strong. It follows from that that I am not persuaded that the appellant has discharged the onus of persuading the Court that this is an appropriate case in which the discretion should be exercised in favour of the appellant. It has been put that there is evidence upon which the trial judge might have found that the respondent had a greater earning capacity than $200 per week but that factual situation was addressed by the trial judge in specific terms. It is put that the computer allowance was too great but that also was addressed by the trial judge in specific terms. 2 UNREPORTED JUDGMENTS General damages is very much a matter of judicial impression and discretion and, for my part, I do not see that in this instance the figure chosen by the trial judge is outside the discretionary range available to him. Accordingly, it seems to me it would be unlikely that a Court of Appeal would intervene. It has also been argued that because the respondent is 19 years of age he may dissipate the funds if he receives them. There is no evidence to support that contention. The prospect of him dissipating a sum as significant as the verdict within a matter of a few months, by which time this appeal should be heard, seem to me to be remote. In those circumstances, I am not persuaded that this Court should grant a stay and the application is dismissed with costs. Orders accordingly.