PRIOR v SMITH [1998] NSWCA 174

PRIOR v SMITH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, STEIN JJA and ROLFE AJA 13 August 1998, 27 August 1998

[1998] NSWCA 174

CONTRIBUTORY NEGLIGENCE — MVA — whether finding of fact 'glaringly improbable' — whether trial judge failed to use or palpably misused advantage

DAMAGES — non-economic loss — whether within discretionary range — past and future economic loss — whether basis for assessing lost earning capacity was incorrect — whether proper assessment of residual earning capacity — whether appropriate deduction for vicissitudes

The respondent was awarded damages of $573,987 for injuries received in a motor accident. The appellant admitted liability but argued that there had been contributory negligence on the part of the respondent. The trial judge found that the accident was caused solely by the negligence of the appellant and no contributory negligence could be attributed to the respondent.

On appeal it was argued that the trial judge erred:

(1) in failing to find contributory negligence;

(2) in assessing damages for non-economic loss at 55% of a most extreme case;

(3) in the assessment of past and future economic loss by failing to take into account the respondent's residual earning capacity;

(4) in failing to apply a proper discount for vicissitudes.

Held:

(1) The trial judge's finding with regard to contributory negligence was well open on the evidence.

(2) The assessment of non-economic loss was within the discretionary range.

(3) The trial judge erred in assessing the respondent's lost earning capacity on the basis of the wages and on-costs of the driver employed by the respondent's company as a substitute for the respondent when he was unable to work. The trial judge's approach equated the costs to the company of the substitute driver with the plaintiff's loss. The better starting point in calculating past and future economic loss is the evidence of the respondent's earnings. The respondent had some residual earning capacity which should be assessed at 25%.