BALASUBRAMANIAN v SARA [1997] NSWCA 39

BALASUBRAMANIAN v SARA

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P and PRIESTLEY JA 14 May, 12 June 1997

[1997] NSWCA 39

The respondent was injured whilst seated in his stationary motor vehicle when it was hit from behind by a vehicle being driven by the appellant.

The respondent received an award of damages in the District Court under the statutory scheme established by the Motor Accidents Act 1988.

The appellant claimed the award of damages was too high and appealed against the assessment of damages by Moore DCJ challenging: (i) the award for non economic loss based on a finding of 30% impairment pursuant to s 79 Motor Accidents Act 1988; and (ii) the assessment for economic loss to the extent that it was based upon findings that the respondent had been rendered totally unemployable and that he would have worked until age 72 years at his pre-accident level of employment.

Held, appeal allowed:

1. Regarding damages for non economic loss, assessment should have been on the basis that the incontinence problem would probably have been cured shortly after the trial, unless the respondent unreasonably failed to mitigate his loss. Thus the trial judge erred in treating incontinence and its psychological sequelae as an inevitable part of the respondent's permanent condition. Taking this into acount, together with this court's assessment of video evidence of the respondent's continuing impairment and the weight to be given to raw data as to psychological injury, the s 79 proportion is assessed at 20%.

2. Regarding damages for loss of earning capacity, the trial judge did not give sufficient weight to the objective factors indicating the respondent would not have continued up to age 72 working as a tiler and 68 is the more probable age of retirement.

Southgate v Waterford (1990) 21 NSWLR 427; referred to.