Wyong Council v Knowles [1999] NSWCA 112

New South Wales Court of Appeal CITATION : Wyong Council v Knowles [1999] NSWCA 112 FILE NUMBER(S) : CA 40516/98 HEARING DATE(S) : 01/04/99 JUDGMENT DATE : 29 April 1999

PARTIES : Wyong Shire Council v Lynette Tracey-Ann Knowles JUDGMENT OF : Sheller JA at 1; Fitzgerald JA at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 70196/95 LOWER COURT JUDICIAL OFFICER : Sidis DCJ

COUNSEL : I G Harrison SC (Appellant) D W Elliot (Respondent) SOLICITORS : Pieterse & Pieterse (Appellant) Orchiston Ranzetta Finney (Respondent) CATCHWORDS : Personal injury; quantum appeal in relation to damages for future economic loss; whether absence of evidence to support award made; amount within permissible range. DECISION : Leave refused

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40516/98 DC 70196/95 SHELLER JA FITZGERALD JA

Thursday, 29 April 1999

WYONG SHIRE COUNCIL v Lynette Tracey-Ann KNOWLES

JUDGMENT

1 SHELLER JA: I agree with Fitzgerald JA. 2 FITZGERALD JA In a judgment delivered in the District Court on 22 June 1998, the damages awarded to the plaintiff, Lynette Tracey-Anne Knowles, included $45,000 in respect of lost future earning capacity. Mrs Knowles was injured on 16 March 1995, and it is not disputed that the defendant in the action, Wyong Shire Council, is liable to pay her damages. The total amount of Mrs Knowles' judgment was $99,541.22, and the Council has applied for leave to appeal, alleging that the damages should be reduced by $25,000 on the basis that Mrs Knowles should only have been awarded $20,000 for future economic loss. An extension of time within which to seek leave to appeal is also needed. 3 The passage in the District Court judge's reasons for judgment directly dealing with future economic loss is as follows: "… As far as the future is concerned the plaintiff is the mother of four children and she is a member of a family of limited means. Modern day life makes it obvious that she will be required to return to work, at least part-time, once her children are all at school. She has some prior experience in secretarial work but she has not done this type of work since 1985 and she will need to upgrade her skills if she is to obtain work in this area. The medical evidence suggest that she will not be able to undertake work which involves heavy lifting, bending or standing for long periods therefore the part-time work which is readily available to a person of her limited training, such as cleaning and shop assistance, will be unavailable to her and her options therefore are restricted. She is still a young woman at 35 and I have therefore assessed her by reasons of the restrictions on her future income earning capacity at $45,000." 4 The Council contends that leave should be granted because the trial judge fell into appellable error because there was insufficient evidence to justify the finding of loss of future earning capacity, and in any event, the amount awarded was manifestly excessive. 5 The ground of appeal related to the Council's contention that there was an absence of evidence to support the award for damages for future loss of earning capacity was founded on the premises that Mrs Knowles did not give evidence that she intended to return to work "at least part-time once her children are all at school", and that the trial judge was not justified in finding that "modern day life makes it obvious" that that would be necessary. However, Mrs Knowles was in part-time employment, in addition to raising her children, aged seven to eleven, at the time when she was injured, and in her evidence she said that it would be financially attractive to return to work if she could. The account she gave of the work histories of herself and her husband bore that out. In my opinion, it was open to the trial judge to form the conclusion which underpinned an award of damages for future economic loss. 6 The other matter argued, namely the Council's contention that the damages awarded for loss of future earning capacity are excessive, depended upon the trial judge's assessment of the appellant's skills and work history, her age, family commitments and financial needs, the injuries which she suffered and their effect on her earning capacity, the opportunities available to her in her injured state and which would have been available to her had she not been injured, and the various medical opinions contained in the evidence. 7 This was a case in which it was appropriate for the trial judge to make a global award taking into account the various possibilities which might eventuate, Cf McDougall v Cullen, (Unreported) 20 March 1995. and I am not persuaded that the amount awarded was beyond the permissible range. 8 I would extend the time to permit the application for leave to be made but would refuse the application with costs. The approach adopted by the Council, which requested that the appeal proceed concurrently with the leave application, makes it appropriate that the Council also pay any additional costs associated with that course.