New South Wales Court of Appeal CITATION : McAneney v Rafaraci [2001] NSWCA 356 FILE NUMBER(S) : CA 40658/00 HEARING DATE(S) : 28 September 2001 JUDGMENT DATE : 28 September 2001 First Appellant: Mark Paul McAneney PARTIES : Second Appellant: Eugenia Magripi Respondent: Giovanna Rafaraci JUDGMENT OF : Beazley JA at 1; Davies AJA at 10 LOWER COURT JURISDICTION : District Court LOWER COURT 10057/97 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER : COUNSEL : Appellants: L M Morris QC/ W Fitzsimmons Respondent: G B Hall QC/ S Norton SC SOLICITORS : Appellants: Windeyer Dibbs Respondents: L J Sharpe & Co CATCHWORDS : Motor vehicle accident - Assessment of damages - No error DECISION : Appeal dismissed with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40658/00 DC 10057/97 BEAZLEY JA DAVIES AJA Friday, 28 September 2001 Mark Paul McANENEY & ANOR v Giovanna RAFARACI JUDGMENT 1 BEAZLEY JA: The respondent sustained an injury to her knee in a motor vehicle accident on 25 May 1996. She brought proceedings against the appellants claiming damages for her injury. Breach of duty was admitted by the appellants prior to trial and the matter proceeded before his Honour Judge Ian Dodd for assessment of damages only. 2 His Honour accepted that the respondent had suffered the injury to her knee as alleged and that up to the date of hearing continued to have on-going problems with it. He found: "She has pain in the knee on and off and especially if she walks too much. Her employer allows her to sit or stand as she wishes. She has to be careful going up or down stairs as she gets a lot of pain. She tries not to walk on rough ground. The knee cracks if she bends. She cannot kneel, or if she does she needs assistance to get up. She cannot squat. She said her knee seems to be getting worse." 3 His Honour assessed a non-economic loss of 29% of a most serious case. That assessment is challenged but no further submissions were advanced in respect of that ground of appeal. I am of the opinion that his Honour's assessment was within an appropriate discretionary range and I would reject that ground of appeal. 4 The second challenge to his Honour's assessment of damages is in relation to future economic loss. At the time of the accident the respondent was working as a kitchen hand with Ansett Catering, having commenced employment in 1989. She continued working for Ansett up to the date of hearing having had a short period of time off work after the accident and initially having returned to work on light duties. The claim made by the respondent in respect of future economic loss encompassed a claim for the loss of potential overtime, which she said would have been available to her and which she would have worked but for the injury to her knee, and for general interference with her economic capacity. 5 There was some evidence in respect of the claim for loss of potential overtime. His Honour recorded this evidence as follows: "The plaintiff said that overtime is still available at her work. She has been offered it. She refuses it because she cannot stand for the times required. If the work requires bending then she gets the leading hand to do it. If she had to stand and walk all day at work she would be able to do some days but not all. She said that some days she can do the housework and sometimes not." 6 His Honour accepted the plaintiff's evidence generally and, relevantly to this issue, he accepted evidence in respect of the overtime. It must be said however, that the evidence adduced which might have enable the quantification of the overtime was not as extensive as it might have been. 7 For example, the figures for comparable earners ceased as at July 1997 and his Honour was assessing damages in August 1999, being the date of hearing, or in August 2000, being the date of judgment. Notwithstanding that the evidence to enable quantification of this claim was scant, his Honour was obliged to do the best he could with the available evidence. A number of approaches were open to his Honour. He chose to extrapolate as best he could from the evidence of the comparable employees which was adduced. That was an available approach. 8 It must be remembered, of course, that in assessing the award for future economic loss his Honour was not only dealing with the loss of prospective overtime, but also with a claim for general interference with earning capacity. He assessed that composite claim at $300 per week. The figure of $300 per week, to encompass the entirety of the claim made for loss of economic capacity was open and I discern no error in his Honour's approach. 9 I would propose, therefore, that the appeal be dismissed with costs. 10 DAVIES AJA: I agree with Beazley JA. 11 BEAZLEY JA: The order of the Court is that the appeal is dismissed with costs. ******** 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.