McKENZIE v CHADWICK INDUSTRIES PTY LTD [1992] NSWCA 149

McKENZIE v CHADWICK INDUSTRIES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY JJA and SAMUELS AJA

12 AUGUST 1992, 12 August 1992

[1992] NSWCA 149

DAMAGES — QUANTUM — NO QUESTION OF PRINCIPLE

Clarke JA I will ask Justice Handley to give the first judgment. HANDLEY JA: This is an appeal by the plaintiff from the assessment of his damages by Sully J. The plaintiff was injured in a work-related accident on 12 April 1985. At the time he was employed by the defendant as a roofing contractor.

The accident occurred when he was working in a confined space and in the vicinity of inflammable material. Some of the material ignited, causing the plaintiff to be engulfed, suddenly and from behind, in an explosion of flame.

He suffered severe burn injuries. The evidence established that these covered forty per cent of his body, partly second degree and partly third degree burns. They were on the exposed surfaces of his body, namely his hands, his arms and his legs. One of the plaintiffs early treating doctors described the burns as life-threatening. The Judge accepted this conclusion.

The defendant admitted liability at the start of the trial and as I have said, the case proceeded as an assessment of the plaintiff's damages.

The plaintiff was twenty eight at the time of the accident, thirty three at the time of his trial in April 1990. The Judge awarded the plaintiff $272,990.42 made up as follows:-

Out of pocket expenses $16,354.42

Past loss of earning capacity $44,327.00

Interest thereon $11,501.00

Future loss of earning capacity $115,808.00

General damages $70,000.00

Interest on past general damages $15,000.00

TOTAL $272,990.42

In his appeal the plaintiff has challenged the amounts allowed by the judge for past loss of earning capacity, future loss of earning capacity and general damages. Necessarily the plaintiff's success in his challenge to any of those figures would have consequential results so far as the calculation of interest is concerned. The defendant did not cross appeal or file a notice of contention but in its submissions has drawn attention to the failure of the trial judge to allow credit for payments of workers compensation prior to judgment diminished by the appropriate allowance on the principles established in Fox v Wood. The net figure amounts to $29,171. It is not clear whether this error also affected, at least in part, the calculation of interest on past loss of earning capacity.