Cash Palace Emporium Pty Ltd & Anor v Bartholomew [1999] NSWCA 359

New South Wales Court of Appeal CITATION : Cash Palace Emporium Pty Ltd & Anor v Bartholomew [1999] NSWCA 359 FILE NUMBER(S) : CA 40741/98 HEARING DATE(S) : 27 July 1999 JUDGMENT DATE : 29 September 1999

Cash Palace Emporium Pty Ltd PARTIES : James Phillips v Penny Bartholomew JUDGMENT OF : Mason P at 1; Sheller JA at 78; Giles JA at 79

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CLD 56/95 LOWER COURT JUDICIAL OFFICER : Greg James J

COUNSEL : A: AR Ashburner, SM Kettle R: P Webb QC, N Canosa SOLICITORS : A: Ferguson Holz, Sydney R: Williamson Isabella, Dapto CATCHWORDS : MOTOR ACCIDENT - Injuries and ongoing disabilities - Which injuries directly caused by the accident - Whether the respondent was already permanently unemployable at time of accident - Extent to which pre-accident personality and problems were affected by the accident; DAMAGES - Award for future economic loss - Whether respondent would have worked until age 60 or 65 - Whether to allow for promotion, overtime or other allowances - Whether to allow for superannuation loss in the future - Whether resourcefulness of respondent taken into account in allowance for vicissitudes of life - Whether proposed career change taken into account - Impact of medical history and personality problems on employability - Whether trial judge failed to appreciate and act upon the significance of primary facts he had found; DAMAGES - Award for past economic loss - Whether trial judge's prognosis of respondent's pre-accident earning capacity revealed appealable error ; DAMAGES - Award for non-economic loss revealed no appealable error; DAMAGES - Challenge to award of future out of pocket expenses - Whether sufficient evidence on this point. CASES CITED: Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 DECISION : Appeal upheld in part