Wyong Council v Knowles

[1999] NSWCA 112

CITATION:	Wyong Council v Knowles [1999] NSWCA 112
FILE NUMBER(S):	CA 40516/98
HEARING DATE(S):	01/04/99
JUDGMENT DATE:	29 April 1999
PARTIES :	Wyong Shire Council v Lynette Tracey-Ann Knowles
JUDGMENT OF:	Sheller JA at 1; Fitzgerald JA at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	70196/95
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ

COUNSEL:	I G Harrison SC (Appellant) D W Elliot (Respondent)
SOLICITORS:	Pieterse & Pieterse (Appellant) Orchiston Ranzetta Finney (Respondent)
CATCHWORDS:	Personal injury; quantum appeal in relation to damages for future economic loss; whether absence of evidence to support award made; amount within permissible range.
DECISION:	Leave refused

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40516/98
DC 70196/95

SHELLER JA
FITZGERALD JA

Thursday, 29 April 1999

WYONG SHIRE COUNCIL v Lynette Tracey-Ann KNOWLES

JUDGMENT

1 SHELLER JA: I agree with Fitzgerald JA.
2 FITZGERALD JA In a judgment delivered in the District Court on 22 June 1998, the damages awarded to the plaintiff, Lynette Tracey-Anne Knowles, included $45,000 in respect of lost future earning capacity. Mrs Knowles was injured on 16 March 1995, and it is not disputed that the defendant in the action, Wyong Shire Council, is liable to pay her damages. The total amount of Mrs Knowles’ judgment was $99,541.22, and the Council has applied for leave to appeal, alleging that the damages should be reduced by $25,000 on the basis that Mrs Knowles should only have been awarded $20,000 for future economic loss. An extension of time within which to seek leave to appeal is also needed.
3 The passage in the District Court judge’s reasons for judgment directly dealing with future economic loss is as follows:
“… As far as the future is concerned the plaintiff is the mother of four children and she is a member of a family of limited means. Modern day life makes it obvious that she will be required to return to work, at least part-time, once her children are all at school. She has some prior experience in secretarial work but she has not done this type of work since 1985 and she will need to upgrade her skills if she is to obtain work in this area. The medical evidence suggest that she will not be able to undertake work which involves heavy lifting, bending or standing for long periods therefore the part-time work which is readily available to a person of her limited training, such as cleaning and shop assistance, will be unavailable to her and her options therefore are restricted. She is still a young woman at 35 and I have therefore assessed her by reasons of the restrictions on her future income earning capacity at $45,000.”
4 The Council contends that leave should be granted because the trial judge fell into appellable error because there was insufficient evidence to justify the finding of loss of future earning capacity, and in any event, the amount awarded was manifestly excessive.
5 The ground of appeal related to the Council’s…