Donald v McKeown

Case [2004] NSWCA 285

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Donald v McKeown & Ors [2004]  NSWCA 285

FILE NUMBER(S):
40782/03

HEARING DATE(S):               2 July 2004

JUDGMENT DATE: 25/08/2004

PARTIES:
Nicholas DONALD  (Appellant) 
Jodie McKEOWN  (First Respondent) 
THE NOMINAL DEFENDANT  (Second Respondent)
NEW SOUTH WALES POLICE SERVICE  (Third Respondent) 

JUDGMENT OF:       Hodgson JA Santow JA    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 12112/01

LOWER COURT JUDICIAL OFFICER:     Naughton DCJ

COUNSEL:
A LIDDEN/ E WELSH  (Appellant) 
D J RUSSELL, SC/ J SEWELL  (First Respondent) 
Not appearing  (Second, Third Respondents) 

SOLICITORS:
Bryden's Law Office  (Appellant) 
Moray & Agnew  (First Respondent) 

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

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. 

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40782/03
DC 12112/01

HODGSON JA
SANTOW JA

25 AUGUST 2004

Nicholas Donald v Jodie McKEOWN & 2 Ors

Judgment

  1. HODGSON JA:  I agree with the orders proposed by Santow JA, and subject to what I say below, substantially with his reasons.

  2. For my part, I would give some weight to the evidence concerning the service allowance of $115 net per week, in relation to future economic loss.  The circumstance that this allowance had never been returned for tax, and may properly be considered as an allowance for disturbance, does not in my opinion render it of no value; although its value should be considered as substantially less than its amount.

  3. In my opinion also, the question whether the appellant would, but for the accident, have stayed in the army should not in this case have been decided on an all-or-nothing basis and then disregarded.  The possibility that the appellant may have earned a higher income in civilian life should have been considered as a positive vicissitude, consistently with Malec v. J.C. Hutton Pty. Ltd. (1990) 169 CLR 638 and Norris v. Blake (No.2) (1997) 41 NSWLR 49.

  4. The primary judge gave little weight to negative vicissitudes associated with the appellant’s actual post-injury earnings; and the disproportion between past economic loss and future economic loss is also in this case indicative of error. 

  5. SANTOW JA: 

    INTRODUCTION

    This appeal is on damages only, from a decision of Naughton DCJ for personal injuries suffered by the…

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AGLC
Donald v McKeown [2004] NSWCA 285
Case
[2004] NSWCA 285
Decision Date

CaseChat Overview and Summary

The appeal in *Donald v McKeown* concerned a dispute over damages awarded to the appellant, Mr Donald, following a motor vehicle accident. The case was heard by the Supreme Court of New South Wales. Mr Donald contended that the damages awarded by the trial judge were inadequate, particularly in relation to his past and future economic loss.

The central legal issues before the Court were whether the trial judge had erred in failing to adequately consider certain components of Mr Donald's economic loss. Specifically, the Court was asked to determine if superannuation entitlements and rent concessions had been overlooked in the calculation of past and future economic loss, and if a service allowance had been improperly excluded. Furthermore, the Court had to consider whether the opportunity for civil employment, which might have offered a higher wage than his military service, had been sufficiently accounted for, and whether the overall assessment of past and future wage loss and loss of superannuation was manifestly insufficient, especially considering the eventual end of his military career. The Court also had to assess whether both positive and negative contingencies had been appropriately taken into account when determining future economic loss.

The Court allowed the appeal in part, finding that the trial judge had erred in the assessment of future economic loss. While acknowledging the trial judge's careful review of the evidence, including the finding that Mr Donald's primary injury was a ligamentous tear in his left shoulder, the Court determined that the original award for future economic loss was insufficient. The Court reasoned that the original assessment had not adequately captured the full economic consequences of Mr Donald's injuries and his subsequent discharge from the army.

Consequently, the Supreme Court of New South Wales ordered that the appeal be allowed to the extent of increasing the award for future economic loss from $26,000 to $100,000. The respondents were ordered to pay the appellant's costs.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 16 April 2000, Mr Donald was discharged from the army medically unfit as a consequence of his ongoing disabilities. He obtained employment for three months as a plasterer’s labourer, and then as a sales representative with Plasta-Masta and later on his own account. THE FIRST INSTANCE JUDGMENTRelevant findings of fact regarding injury The trial judge carefully reviewed the evidence and issues in his judgment of 15 August 2003, where damages had been separately particularised (Red, 6). He concludes that the only serious injury sustained by Mr Donald was a ligamentous tear in his left shoulder. There is no significant lingering back problem (Red, 56U-Z). Such an injury is likely to cause recurring spontaneously self-correcting dislocations for persons such as Mr Donald who regularly have to flex their shoulders and lift loads in the course of the work (Red, 58D-G). Mr Donald has in fact suffered these from June 2002 (Red, 62F). Accepting the Dr Ellis’ report (one of the appellant’s medical experts), if Mr Donald has another operation to stabilise his shoulder, the chances of his left shoulder being significantly better will be “great” (Red, 62K), having regard to his generally good health and strength (Red, 63Y). Relevant findings of fact regarding work and employment In April 1999, Mr Donald was downgraded from Class 1 medically fit to Class 3 because of his shoulder injury (Red, 58K-L). He was discharged from the Army on 17 April 2000 as unfit to do his pre-accident full manual duty work (Red, 60R). He had previously been a fire-fighter at the rank below Lance Corporal, namely Private, earning $33,462 (as compared to Lance Corporal of $34,793). Mr Donald now works as a sales representative, part-time with Plasta-Masta (25-30 hours p.w.) and part time in his own employment (about 15 hours p.w.). Altogether he now works about 40 to 49 hours per week. (Red, 61U-62C). Mr Donald has been able to work constantly since mid 2001, which although not “heavy” work was not work of the lightest kind as it did involve some lifting and carrying (Red, 63P-R). Principal relevant findings on damages These are as follows: In circumstances where the only serious injury sustained by Mr Donald was a ligamentous tear in his left shoulder with no significant lingering back problem, and where, though the injury is likely to cause recurring spontaneously self-correctly dislocations in the course of work but capable of being rendered significantly better by a stabilisation operation where his chances are “great”, the trial judge had a range of possibilities within which to determine the severity of the plaintiff’s non-economic loss. In fact the trial judge determined the proportion, according to the severity of the plaintiff’s non-economic loss, of the maximum amount which may be awarded to the plaintiff for non-economic loss at as high as 30%. That calculation is on the generous side. It is necessitated by the provisions of s79A(3) of the Motor Accidents Act 1988, which fixes the maximum amount which may be awarded at $309,000. The amount awarded for non-economic loss was calculated at $71,000, pursuant to the requirements of that Act. Ground 1

Ratio Decidendi

Legal Principle Established

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