Batchelor v Burke [1981] HCA 30

High Court of Australia Gibbs C.J. Murphy, Aickin, Wilson and Brennan JJ. Batchelor v Burke [1981] HCA 30

ORDER Appeal allowed. Judgment of the Full Court of the Supreme Court of South Australia varied by substituting for the sum of $212,914.63 the sum of $210,890.00. Order (in accordance with the condition imposed on the grant of special leave) that the appellant pay to the respondent the costs of the appeal.

Cur. adv. vult.

The following written judgments were delivered:—

June 16 Gibbs C.J.

The respondent, one of the plaintiffs in an action commenced in the Supreme Court of South Australia, was awarded damages for personal injuries caused by the negligence of the appellant. The learned trial judge, in assessing the amount of damages payable in respect of the loss of earning capacity suffered by the respondent, followed the usual and convenient course of estimating the amount of wages lost up to the date of the trial. These he fixed at $21,000. However, the respondent had received at least that sum from his employer by way of workers' compensation in respect of the injuries. Before the learned trial judge the question was raised whether interest should be allowed on the sum of $21,000. The appellant submitted that it should not, because the respondent, having received the compensation in place of his wages, had not experienced any economic loss before the trial. The respondent submitted that interest should be awarded, because the payments of compensation were made by a third party and not by the appellant and should be disregarded. The learned trial judge agreed with the latter view. He allowed interest at 9 per cent from the date of the writ, but only on one half of the amount of $21,000, because if the respondent had been able to continue to work he would have received his salary periodically and not in one lump sum. Interest was fixed at $2,024.63. On appeal, the Full Court sustained the decision of the learned trial judge on this point and held that it was right to allow interest on the respondent's loss of earnings undiminished by the amount received by way of workers' compensation. From this decision special leave to appeal has been granted, to enable this Court to decide as a matter of principle whether interest should be awarded on that portion of a judgment which represents loss of earnings before trial notwithstanding the fact that the plaintiff has received workers' compensation during that period.