Donald v McKeown & Ors [2004] NSWCA 285

New South Wales Court of Appeal

CITATION : Donald v McKeown & Ors [2004] NSWCA 285 HEARING DATE(S) : 2 July 2004 JUDGMENT DATE : 25 August 2004

JUDGMENT OF : Hodgson JA at 1; Santow JA at 5 DECISION : (1) Appeal allowed to the extent of increasing future economic loss from $26,000 to $100,000 but not otherwise ; (2) The respondents to pay the appellant's costs.

CATCHWORDS : DAMAGES - motor vehicle accident - at time of accident appellant employed as fire-fighter with Department of Defence - inadequacy of damages - failure to consider superannuation and rent concessions for purposes of calculating past and future economic loss - failure to take account of service allowance - failure to consider opportunity for civil employment with consequent higher wage than with Australian Army - whether past and future wage loss and loss of superannuation manifestly insufficient in particular for once appellant's career in Army over - need to take into account both positive and negative contingencies for purposes of assessing future economic loss. LEGISLATION CITED : Motor Accidents Act 1988 s79A(3) Supreme Court Rules Pt 9 r27 Foster v Tyne & Weir County Council [1986] 1 All ER 567 at 570 Giorginis v Kastrati (1998) 49 SASR 371 CASES CITED : Malec v. J.C. Hutton Pty. Ltd. (1990) 169 CLR 638 Minchin v Public Curator of Queensland [1965] ALR 91 Norris v. Blake (No.2) (1997) 41 NSWLR 49 State of New South Wales v Moss [2000] NSWCA 133, 31 May 2000, unreported Nicholas DONALD (Appellant) PARTIES : Jodie McKEOWN (First Respondent) THE NOMINAL DEFENDANT (Second Respondent) NEW SOUTH WALES POLICE SERVICE (Third Respondent) FILE NUMBER(S) : CA 40782/03 A LIDDEN/ E WELSH (Appellant) COUNSEL : D J RUSSELL, SC/ J SEWELL (First Respondent) Not appearing (Second, Third Respondents) SOLICITORS : Bryden's Law Office (Appellant) Moray & Agnew (First Respondent)