Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1981] HCA 3

High Court of Australia Barwick, C.J. Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ. Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1981] HCA 3

ORDER Appeal by Pennant Hills Restaurants Pty. Ltd. dismissed with costs. Cross-appeal by Barrell Insurances Pty. Ltd. allowed with costs. Appeal by Barrell Insurances Pty. Ltd. allowed with costs. Cross-appeal by Pennant Hills Restaurants Pty. Ltd. dismissed with costs. Order of the Supreme Court of New South Wales (Court of Appeal) entered on 5th March 1979 varied as follows:

(a) Delete par. 2 of that order and substitute the following:

2. Verdict in the sum of one hundred and eighty seven thousand one hundred and forty two dollars sixty five cents ($187,142.65);

(b) Delete par. 4 of that order and substitute the following:

4. In lieu of the interest which would otherwise be payable under s. 95 of the Supreme Court Act 1970, interest shall be payable at a rate equivalent to the prescribed rate on so much of the sum of $187,142.65 as was and is from time to time unpaid as from 16th December 1977 until payment.

Cur. adv. vult.

The following written reasons for judgment were delivered:—

1981, Feb. 10 Barwick C.J.

The respondent in this case is to be compensated now by a lump sum against its statutory liability to pay workers' compensation in the future, under the Workers' Compensation Act, 1926 N.S.W., as amended. Had the respondent been insured by the due efforts of the appellant to which it was entitled, that liability would have fallen on an insurance company.

The case is in its facts not one of a similar kind to the case dealt with in O'Brien v. McKean [1] (O'Brien's Case), i.e. it is not a case of the assessment of compensation for personal injuries. Rather, it is a case in which compensation is to be assessed for the liability to make future disbursements the amount of which is statutorily indexed to a designated index, which is variable according to future wage movements. In so far as that index has already operated, no particular problem arises. The question is whether the possibility of future changes in the index increasing the amount of the workers' compensation payable can be reflected in the assessment of the damages for which the appellant is liable.