GIO OF NSW v MICH [1991] NSWCA 117

GIO OF NSW v MICH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, CLARKE and HANDLEY JJA 13 August 1991, 13 August 1991 [1991] NSWCA 117

APPEAL — DAMAGES — IMPAIRMENT OF EARNING CAPACITY — EMPLOYMENT RECORD — CONTINGENCIES

Clarke JA The plaintiff, Ahmed Mich, was born on 25 January 1951 and received a neck injury in a motor vehicle accident on 28 October 1984. He sued in respect of that injury and, in due course, liability was admitted and the matter proceeded as one for assessment only before J B Phelan, DCJ. His Honour assessed the damages at a total figure of $278,427 and judgment was entered accordingly.

The defendant has appealed from that assessment challenging, in particular, the assessment of the impairment of earning capacity to the date of trial and in the future, and the assessment of general damages.

During the course of the appeal counsel for the plaintiff has conceded that his Honour made two errors. In the first place he adopted an incorrect interest rate in calculating the damages for the impairment of earning capacity in the future. If that were the only mistake then, as I see it, the task for this Court would be simply to work out the correct figure by using the proper interest rate and to make appropriate adjustments to the judgment.

However, there is a second error which is conceded and that is that in the allowance of $67,410 for the impairment of past earning capacity, his Honour failed to make any allowance for the vicissitudes or contingencies and it has been conceded in the circumstances of this case that such an allowance was called for. It seems to me that where there are two errors of this nature the court is obliged to set aside the judgment under appeal and to assess the damages. That assessment should, however, be carried out upon the basis that his Honour accepted the plaintiff in his statement of the problems which were troubling him. This acceptance is clearly spelled out in the judgment and it is appropriate in my view that this Court proceeds upon the basis that the plaintiff has suffered from all the problems of which he gave evidence.