Barber, R. v Meadwell, S.J - [1980] FCA 128

Re: ROBERT BARBER and ROBERT WARWICK ELLISTON
And: STEPHEN JOHN MEADWELL
No. NTG 8 of 1979
Damages
32 ALR 162

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
St John J.
Toohey J.
Fisher J.

CATCHWORDS

Damages - assessment - personal injuries - tetraplegia Economic loss - apprentice - loss of earning capacity Appropriate interest rate for discounting - use of Australian Savings Bonds rates

Rule in Cullen v. Trappell - income tax notionally payable on award - income and capital components of lump sum award - adjustment confined to allowance for future economic loss

Sustenance - deduction from loss of earning capacity for lost years and set off against cost of institutional care

Future institutional care - effect of award on payment of Commonwealth benefit - s.59 National Health Act Motor vehicle expenses - cost of modification of vehicle or of driver in lieu of vehicle - deduction where services gratuitously provided

Pain and suffering and loss of amenities - limited usefulness of awards in earlier cases - effect of inflation

HEARING

DARWIN

#DATE 22:9:1980

ORDER

1. The appeal is dismissed.

2. The appellants pay the respondent's costs of the appeal.

JUDGE1

I have had the advantage of reading the reasons for judgment of Toohey J. I agree that the appeal should be dismissed. I agree with the reasons therein expressed with the exception of that part dealing with future motor vehicle expenses but as no question of principle is involved I do not propose to comment further.

JUDGE2

This is an appeal from a judgment of the Supreme Court of the Northern Territory awarding the respondent the sum of $498,070 damages for personal injuries.

The respondent is a single man, born on 25 January 1955. On 8 August 1974 he was seriously injured in a collision on the Stuart Highway between a truck and a car in which he was travelling as a passenger.

In the words of the learned trial judge:

"He now has a complete tetraplegia below the neurological level of C6. This means that he has a paralysis which covers all modalities of function, including motor, sensory, autonomic and involving legs, trunk and the hands. There is remaining function in his biceps and a single extensor of his wrists on both sides. There are no wrist flexors. There is no hope of recovery or even improvement. He does, however, have muscle spasms and suffers pain in the legs. Both conditions are permanent and incurable".

His Honour dealt with the components that went to make up the award of damages in this way:

Past economic loss $30,000
Future economic loss $170,000
Future institutional care $130,000
Past and future medical equipment
and supplies $30,000
Special damages $20,000
Parents' expenses $8,070
Motor vehicle expenses $30,000
Pain and suffering and loss of amenities
$80,000

_________ TOTAL: $498,070

A reading of the judgment shows that in drawing together the various components his Honour left out of account a sum of $2000 assessed for loss of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1980] FCA 128
Decision Date: 22 SEPTEMBER 1980

CaseChat Overview and Summary

The matter in question involved a claim for damages related to personal injuries sustained by the appellant, Barber, who suffered tetraplegia following an incident. The respondent, Meadwell, was found liable for the injuries. The dispute reached the court, where the focus was on the appropriate assessment of damages, particularly concerning the loss of earning capacity of the appellant and the calculation of economic loss. Additionally, the court had to determine the correct interest rate for discounting future losses, with particular reference to the rates of Australian Savings Bonds.

The court was tasked with resolving several critical legal issues. The first was the appropriate method for assessing the economic loss incurred by the appellant, who, due to the tetraplegia, had lost the ability to work as an apprentice and thereby his earning capacity. The second issue was the determination of the appropriate discount rate to apply to future loss of earnings, with the appellant arguing for a rate based on Australian Savings Bonds, and the respondent contending for a different approach.

In delivering the judgment, the court held that the trial judge's assessment of the appellant's loss of earning capacity was correct and that the method used to calculate the economic loss was appropriate. Regarding the discount rate, the court found that the use of Australian Savings Bonds rates was suitable for discounting future losses. The court rejected the appellant's contention that a higher rate should be applied. Consequently, the appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellants pay the respondent's costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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