ADEL BALLOUT v VICKERS RUWOLT PTY LTD [1990] NSWCA 18

ADEL BALLOUT v VICKERS RUWOLT PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY ACJ, MAHONEY and MEAGHER JJA 7 March 1990, 23 March 1990

[1990] NSWCA 18

DAMAGES — injury to Lebanese labourer — 20% permanent loss of efficient function of left hand — fit for wide range of labouring jobs — preponderance of medical opinion says unfit for pre-injury heavy labouring work — lack of skills and English language — trial judge rejects plaintiff's evidence as to search for suitable work — judgment entered allows no continuing compensation for continuing loss of earnings or loss of earning capacity — appeal — held: (1) Mahoney JA and Meagher JA: Kirby P dissenting): The damages although low were not so low as to show error and authorize intervention of the Court of Appeal. Wilson v Peisley (1976) 50 ALJR 207 and Davis v Powell Duffryn Associated Colliers Ltd [1942] AC 601, 616 (HL) referred to.

INTEREST — on judgment moneys — discretionary character of — plaintiff fails to claim interest at trial — gross delays between injury (1974) and trial (1982) — further gross delays between trial and appeal (1990) — whether delay disentitled appellant to interest; held: (per Kirby ACJ dissenting, Mahoney JA and Meagher JA expressing no opinion); (1) Delay in the prosecution of a claim has conventionally been considered to be a factor relevant to the award of interest on damages on appeal. Bennett v Jones and Anor [1977] 2 NSWLR 355; Bryce v Tapalis, unreported, Court of Appeal, 10 February 1989; (1989) NSWJB 39 applied; (2) Furthermore, when first sought on appeal, it is relevant to consider any prejudice suffered by the defendant in not having the opportunity to call evidence at the trial. Tehfe v Chiu, Court of Appeal, unreported, 2 February 1984 referred to; (3) Nevertheless, the purpose of interest is to reimburse a plaintiff who, by subsequent judgment is held to have been kept out of his or her money. Shoard v Palmer and General Credits Ltd, Court of Appeal, unreported, 21 December 1989; (1989) NSWJB 231; (4) Different considerations arise where, on appeal, the judgment below is set aside and damages must be recalculated. Tehfe (per Moffitt P) considered.