NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO of NSW) v GOMES [1998] NSWCA 165

NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO of NSW) v GOMES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and STEIN JJA 5 June 1998, 26 October 1998 [1998] NSWCA 165

ASSESSMENT OF DAMAGES — trial Judge's failure to give reasons an error of law — future out of pocket expenses — future economic loss — future non — economic loss

Both the appellant and respondent appealed against the trial Judge's assessment of damages in proceedings brought by the respondent to recover damages for the onset of attacks of schizophrenia precipitated by severe grief reaction and nervous shock the he suffered as a result of the death of his father in motor vehicle accident.

Liability was admitted before the hearing and the trial Judge awarded damages of $926,232.99. The appellant appealed against the assessment of damages for future out of pocket expenses, in particular, psychiatric consultations during periods of hospitalisation, hospital expenses and anti-psychotic medication. The appellant cross appealed against the assessment of non-economic loss, future economic loss and future out of pocket expenses on the basis that the trial Judge had applied excessive and inappropriate discounts, based on her findings as to the prospect of the onset of the respondent's illness even if his father's sudden death had not precipitated it.

Held:

1. The trial Judge's failure to give adequate reasons for her assessment of the cost of future hospitalisation is an error of law and may mask a misunderstanding of the evidence. Therefore, this element was to be re-assessed. The trial Judge's award of hospital expenses for 4 months per year was excessive. The correct assessment of damages, before any discount, was $308,100 on the basis that the respondent will require 4 months hospitalisation every two years. Soulemexis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 and Sharman v Evans (1977) 138 CLR 563 at 565 applied.