GILLIES v NANCARROW AND ANOR [1998] NSWCA 92

GILLIES v NANNCARROW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, BEAZLEY and STEIN JJA 19 August 1997, 27 February 1998

[1998] NSWCA 92

DAMAGES — past economic loss — future economic loss — calculation of appellant's earnings — appellant's residual earning capacity

The plaintiff appealed from the assessment of her damages arising out of injuries sustained in a motor vehicle accident on 18 February 1984. The amounts in dispute were those awarded for past economic loss after the appellant had been forced to sell her pharmacy due to her injuries and for future economic loss.

HELD: Allowing the appeal in part: (1) That the trial Judge's estimate of the appellant's earning capacity from the pharmacy at $1,010 per week was too low. The error occurred due to the adoption of average profits over the years 1988-1992 when three of those years were affected by abnormal circumstances. Thus the correct figure for the earning capacity from the pharmacy was $1,313 per week. (2) Per Handley & Stein JJA: That the trial Judge's estimate of the appellant's residual earning capacity at $725 per week was correct. The Judge's finding that the appellant's income from bookkeeping in her husband's business would continue was, on the evidence, correct. Per Beazley JA (dissenting): The conclusion that the appellant would continue to work for her husband's business once she obtained full tune work as a pharmacist and increased her qualifications was unrealistic. The trial Judge's justification for the finding that the appellant would continue to work 55 hours per week in total (ie that she had done so in a single job) was not applicable to work in two jobs. The appellant's obligation to mitigate her damages did not require her to undertake work outside her chosen profession when she was willing and able to undertake work within that profession. No allowance should have been made for work in her husband's business.