NESTLE AUSTRALIA LTD v McDOUGALL [1998] NSWCA 158

NESTLE AUSTRALIA LTD v McDOUGALL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, POWELL and BEAZLEY JJA 20 April 1998, 24 June 1998

[1998] NSWCA 158

Damages — Personal injury — Deduction for vicissitudes from award for past economic loss or general damages — Where pre-existing medical condition — Usual deduction for contingencies — Whether other discount figure should be applied — Positive and adverse contingencies — Whether vicissitude of non-tortious injury should be taken into account

Practice and procedure — Pleadings and particulars — Failure to particularise — Purpose of particulars — Where evidence to support claim — Absence of prejudice — Supreme Court Rules Pt33 r8A.

This is an appeal from an award of damages made by Badgery-Parker J in favour of the respondent for personal injuries sustained on 10 April 1987. Four principal issues arose on the appeal:

(i) whether the trial judge should have made a deduction for vicissitudes from the amount awarded for past economic loss. There was also a challenge to the award of economic loss for the period to September/October 1991;

(ii) whether such deduction should also have been made from the award for general damages;

(iii) whether his Honour wrongly excluded the potentiality of non-tortious work-related injuries from the assessment of the percentage deduction made for vicissitudes; and (iv) whether the trial judge erred in permitting any claim for future out-of-pocket expenses when such claims, although notified in a general sense, had not been particularised.

HELD, dismissing the appeal:

(1) In an award of damages for future economic loss, account must be taken of the vicissitudes which may affect a particular plaintiff's earning capacity. Account must be taken of both positive and adverse contingencies in assessing the appropriate award of damages, including the possibility of future non-tortious injury, as well as the possible development or deterioration of any pre-existing injury or condition.