HALTEH v TURNER [1992] NSWCA 104

HALTEH v TURNER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and SHELLER JJA 18 February 1992, 13 March 1992

[1992] NSWCA 104

APPEAL — AGAINST TRIAL JUDGE'S FINDINGS OF FACT: DAMAGES — APPEAL AGAINST QUANTIFICATION APPEAL — against trial judge's findings of fact that respondent's disabilities attributable to the accident Held: there was no basis upon which to interfere, following Abalos v Australian Postal Commission (1989) 171 CLR 167

DAMAGES — appeal against quantification — general damages -interest on general damages — economic loss. The respondent, a professional musician, was injured in a motor vehicle accident. Negligence was not in issue and the respondent was awarded substantial damages. In an appeal against the quantification of damages the appeal was allowed in part as follows: * General damages: the award of $125,000 was so high as to make it erroneous; * Interest on general damages: the respondent conceded, following NBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657, that interest on general damages had been wrongly calculated. Economic loss: the royalties component had been wrongly calculated by the trial judge.

Abalos v Australian Postal Commission (1990) 171 CLR 167 55 Hontestroom v 55 Sagaporack (1927) AC 37 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 Miller v Jennings (1954) 92 CLR 190

Mahoney JA I agree with the judgment of Sheller JA. As the judgment awarded by the learned trial judge is to be reduced by a substantial sum, $149,731, I shall add some brief observations of my own.

The substantial reductions in the trial judge's judgment lie in the area of royalties, interest, and general damages.

The claim for loss of royalties, as I shall describe these matters, involves elements of prediction or speculation. I am conscious that, in the assessment of damages of this kind, what is involved is the valuation of the loss of an opportunity and that the quantification of damages for such a loss must involve elements of prediction or speculation. The accountant on whom the learned trial judge relied had, perhaps, some expertise in respect of the predictions or speculations which had to be made. But in the end it is for the court to determine whether the quantification of damages for the loss of the chance to earn royalties and the like can be sustained. I do not think it has been shown, with the necessary degree of cogency, that the plaintiff, uninjured, would have earned the royalties claimed for him. I agree with the observations of Sheller JA in this regard.