New South Wales Court of Appeal CITATION : Borg v Kingsford Smith Transport & Anor [1999] NSWCA 283 FILE NUMBER(S) : CA 40693/98 HEARING DATE(S) : 03/08/99 JUDGMENT DATE : 3 August 1999 PARTIES : Luke Paul Borg v Kingsford Smith Transport JUDGMENT OF : Sheller JA at 2; Beazley JA at 3; Fitzgerald JA at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 987/97 LOWER COURT JUDICIAL OFFICER : Murrell DCJ COUNSEL : R S McIlwaine SC/D J S Jenkins (Appellant) I D Cullen (Respondent) SOLICITORS : Beston Macken McManis (Appellant) Vandervords (Respondent) CATCHWORDS : Motor accident; taxi driver not wearing a seat belt; contributory negligence; past and future economic loss; no point of principle. DECISION : Appeal dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40693/98 DC 987/97 SHELLER JA BEAZLEY JA FITZGERALD JA Tuesday, 3 August 1999 Luke Paul BORG v KINGSFORD SMITH AIRPORT JUDGMENT 1 FITZGERALD JA : The appeal is dismissed with costs and the Court is of the unanimous opinion that the appeal does not raise any question of general principle pursuant to subsections 45(4) of The Supreme Court Act 1970. The Court's reasons in short form are: (a) A finding of 15 percent contributory negligence was open. A taxi driver's failure to wear a seat belt when it is safe to do so and there is no other reason why it is not reasonable to take such a precaution is capable of constituting evidence of contributory negligence. (b) The other grounds of appeal related to past and future economic loss. At trial, both parties agree that "The only possible approach was to award a lump sum" for each component because of the state of the evidence. The trial judge was scathingly critical of the evidence of the appellant, whose evidence was regarded as totally unreliable and the evidence of his wife, an accountant, who gave evidence concerning his earnings was regarded as little better. Her "recollection of his earnings was partly guesswork" according to the trial judge. On the evidence, the appellant was making no or virtually no income prior to the accident. In the circumstances, even if the period for which he was unable to work post accident was two years, not eighteen months as decided by the trial judge, her Honour's failure to award more than a lump sum of $5,000 for that period was not outside a sound exercise of discretion. (c) So far as future economic loss is concerned, her Honour was plainly of opinion that, at the date of the trial and so far as could be told for the future, the appellant was capable of earning an income as a taxi driver at least to the extent to which he had done so prior to the accident. Her Honour's award of $5,000 for the remainder of his working life was merely a buffer against the possibility that at some future time that might be temporarily disrupted. In the circumstances the Court is again of the opinion that the amount awarded was not outside the sound exercise of discretion. 2 SHELLER JA : I agree with Fitzgerald JA. 3 BEAZLEY JA : I also agree with Fitzgerald JA. 4 SHELLER JA : The orders will be as indicated by Fitzgerald JA. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.