Daryl Allan Cowley v the Commonwealth of Australia [1988] ACTSC 26 (10 May 1988)

SUPREME COURT OF THE ACT

DARYL ALLAN COWLEY v. THE COMMONWEALTH OF AUSTRALIA
S.C. No. 1169 of 1984
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Damages - personal injury - assessment of quantum of damages.

HEARING

CANBERRA
10:5:1988

ORDER

There be judgment for the plaintiff in the sum of $139,467.39.

The defendant pay the plaintiff's costs.

DECISION

Since announcing my decision on liability and my findings on most matters relating to damages, I have had the benefit of further addresses from counsel. The agreed figures contain a reference to the plaintiff's total net earnings from the date of his injury to the date of hearing. I am now told that this total consists of what he received by way of wages or salary and what he received by way of weekly compensation. The total figure is $89,395.51. The total weekly compensation paid during that period, after deduction of tax, is $27,068.02. The net figure for wage or salary during the period is therefore $62,327.49. When that figure is substracted from the total net earnings for the comparable employee, namely, $112,910.10, it leaves $50,582.61 for past economic loss.

2. Counsel for each of the parties has expressly stated that, for complicated reasons with which I have not been burdened, the continuing wage loss is $44 net per week. That loss will continue until such time as the plaintiff qualifies as a welfare officer, if in fact he does so. If he so qualifies his earnings may be expected to be no less than what he would have earned if he had not been injured. Nevertheless, for the reasons to which I have already adverted there must be a substantial possibility that the plaintiff will, unfortunately, not so qualify. I do not know the ordinary length of the course, but would assume it to be about four years and would add another year to allow the plaintiff extra time to complete it, in the light of his present educational background. On the three percent tables that represents a loss of $10,692.00 for the next five years which I would reduce by fifteen percent for contingencies in the normal way to $9,088.20. At the end of the five year period the plaintiff would be forty-one years old. It is of course quite impossible to know what chance he has of becoming a welfare officer, but looking at the matter from a broad perspective I think it appropriate to allow the $44 per week from age forty-one to sixty (there being no likelihood that the injury would cause any loss of earning capacity thereafter) which on the three percent discount tables yields a figure of $33,396.00 and to reduce that by half for contingencies to $16,698.00. Looking at the matter from another way, this represents a loss of $22 per week over that latter period, which I think is a reasonable way to approach the question. Because the loss for the latter period is a postponed loss for which the plaintiff is to be compensated forthwith, there should be a further slight discount and I round out the total for future loss of earning capacity to $25,000.00.

3. For pain and suffering and loss of amenities of life, I award the sum of $30,000 as to which I apportion $20,000 for the past. Interest will be awarded on that component and also on $23,514.59 being the agreed figure upon which interest is to run in relation to past economic loss. Interest will be calculated at fourteen percent per annum and the result reduced by half giving an end figure for interest of $19,545.30.

4. The total award is in summary as follows:

Past economic loss $ 50,582.61

Future economic loss $ 25,000.00
Past out-of-pocket expenses $ 5,727.21
Future out-of-pocket expenses $ 400.00
Fox v. Wood $ 8,212.27
Pain and suffering and loss of
amenities of life $ 30,000.00
Interest $ 19,545.30
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Total: $139,467.39
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5. Viewed globally the award of damages appears to be reasonable in the circumstances. The plaintiff is to have judgment for $139,467.39. Unless the parties wish to be heard I propose that the defendant pay the plaintiff's costs.