SNAP APART PTY LTD v CONSTANTINOS MOUSAIDIS [1992] NSWCA 232

SNAP APART PTY LTD v CONSTANTINOS MOUSAIDIS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and HANDLEY JJA 25 march 1992, 25 March 1992 [1992] NSWCA 232

DAMAGES — PARTIAL LOSS OF FINGER FAILURE TO DEDUCT WORKERS COMPENSATION PAYMENTS — EXCESSIVE INTEREST — GENERAL DAMAGES IMPAIRMENT OF EARNING CAPACITY NO ERROR _ IN QUANTUM — NO QUESTION OF PRINCIPLE

Clarke JA This is an appeal from the judgment of Judge Armitage given on 25 March 1991 in which he awarded the plaintiff (who is the respondent here) the sum of $40,830. There are four separate challenges in the appeal, two of which are of a strictly mechanical nature. It is convenient to deal with those two before proceeding to the remaining grounds.

The first is that his Honour erred in failing to deduct from the general damages, which he awarded in the sum of $27500, workers compensation payments which had been made pursuant to s16 of the 1926 Act in the sum of $2975. It was the submission of the appellant that Haines v Bendall which was decided in the High Court (1 May 1991, unreported), stood as authority for the proposition that those payments should have been deducted. While the respondent did not consent to the deduction, his counsel made no submissions in opposition to the appellant's contention and, in effect, conceded the point. Accordingly, subject to what appears later, the sum of $2975 should have been deducted from the verdict.

The second point in respect of which the respondent's counsel again made no contrary submissions was that interest on general damages for past pain and suffering had been calculated at an excessive rate. It seems clear that, despite the submissions to the contrary, his Honour erroneously adopted a figure of 6 per cent, which was, in effect, half of 12 per cent over the whole period. The figure his Honour should have used is 4 per cent and, in accordance with conventional practice, he should have allowed 2 per cent over the whole period. Because of this error there will be a need to reduce the verdict by $1725.