VAN DOORE (BY HIS TUTOR THE PROTECTIVE COMMISSIONER) v MENDEZ and ANOR [1997] NSWCA 329

VAN DOORE (BY HIS TUTOR THE PROTECTIVE COMMISSIONER) v MENDEZ and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and BEAZLEY JJA

17 July 1997, 5 August 1997

[1997] NSWCA 329

Damages — domestic assistance — superannuation benefits — No error of principle.

The appellant was injured when the motor cycle on which he was a passenger collided with a motor vehicle. He sustained permanent frontal lobe brain damage with no prospect of further recovery.

The appellant's substantial and continuing disability arises from the brain damage, which has resulted in adverse personality and behavioural changes. He suffers from sudden mood swings, sudden loss of temper, violent and aggressive behaviour, impatience, impulsive and agitated behaviour, inability to tolerate delay, inability to complete tasks due to restlessness and boredom, an inability to maintain interpersonal relationships, he cannot organise or plan his work he lacks insight, has severe memory problems, and suffers post-traumatic headaches. The appellant is able to carry out basic self-care - preparing simple meals, bathing, dressing and toileting - but requires prompting and direction. It was accepted that the appellant is permanently totally incapacitated for any form of productive work.

Liability was admitted, and it was agreed that the appellant was 17.5% contributorily negligent. The matter proceeded on the assessment of damages only.

The appellant appealed against the award of damages. In particular, it was contended that the awards for loss of superannuation benefits and past and future domestic assistance involved appealable error.

HELD:

(1) Appeal dismissed

(2) The amount allowed for domestic assistance was not outside the exercise of a sound discretionary judgment.

(3) No error was demonstrated in the calculation of loss of superannuation benefits.