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. In the result, if no other ground of appeal succeeds, and subject to a notice of contention which was filed, the judgment should be altered to a figure of $33730. The two remaining grounds of appeal challenge his Honour's award of $27500 for general damages, that is before the appropriate deduction, and an award of $7000 for the impairment of earning capacity. The injury suffered by the respondent was a significant cut to the index finger of his right hand which led to the loss of the whole distal phalanx and possibly the loss of part of the medial phalanx. The course of the respondent's recovery and details of the continuing disabilities are carefully set out in his Honour's comprehensive judgment, and in these circumstances no good purpose would be served by me recording them again. It is sufficient to note that he has suffered from physical disabilities as a result of the loss of part of his finger and has, in addition, suffered from embarrassment and some depression and anxiety. 2 UNREPORTED JUDGMENTS The question is whether, in these circumstances $27500 is beyond the realm of sound judicial discretion. I am not certain that if I had been trying the case I would have awarded the same figure, but I am quite unable to say that it is beyond the realm of sound judgment. What should be awarded for the loss of portion of a finger or hand is, in many ways, a completely subjective matter and I regard it as one in which trial judges should be accorded a wide range. Having that in mind, all I am prepared to say about this sum is that it is towards the top of that range, but does not fall over onto the wrong side. The other complaint related to the impairment of earning capacity. The respondent managed to work for some years after the accident, that is from 27 September 1983 until 18 May 1990, without undue difficulty. On the latter date he ceased employment with the appellant when he resigned because of a dispute as to working hours. His Honour's view was that the respondent's decision to resign was hasty, unreasonable and unwarranted. Between the date of resignation and the date of trial the respondent had not worked because he had been unable to get any work. In view of the clear evidence that the respondent had exercised his work capacity in the manner that he had prior to the accident for about seven years after the accident, a large award for an impaired earning capacity could not be justified. However, his Honour did not make a large award. What his Honour said was that he thought the injury and disabilities flowing from it would possibly make it harder for the respondent to get jobs in the future. His Honour observed that in a case of this nature it was impossible to use any mathematical formula and his Honour indicated that the figure which he awarded took account of the fact that the respondent had approximately fifteen years working life left, during which time he may be out of work by reason of his disability. Clearly his Honour did not think he would be out of work for lengthy periods or that he would be unfit to do most forms of work. Nonetheless a clear disability had been shown and the view that this might impact upon his ability to get employment from time to time was clearly justified. Bearing in mind the dimension of the award, I find it quite impossible to say that it is beyond the realm of sound judgment. Accordingly, I would reject the two grounds of appeal challenging the general damages and impairment of earning capacity, but would allow the two other grounds which are of a mechanical nature. The respondent sought to sustain the verdict upon the basis that, although his Honour was in error in the two amounts I have mentioned, the amount awarded in respect of general damages was lower than would have been awarded if his Honour had paid due attention to the opinion of Dr Dent. According to Mr Petty, who appeared for the respondent, Dr Dent found evidence of the rather elaborately named condition, "adjustment disorder with mixed emotional features and social inhibition". Having regard to appendix A to Dr Dent's report, it would seem that the doctor was indicating that there was evidence of the continuation of anxiety and depression and other emotions. The questions of anxiety and associated problems resulting from the injury were not, in the context of this case, unimportant and if his Honour had paid no regard to them I might have some doubt whether he made an adequate award, but, having carefully read his judgment and his reference to the report of Dr Henke in which the doctor spoke of the respondent's significant distress regarding his URJ SNAP APART PTY LTD v CONSTANTINOS MOUSAIDIS (Handley JA) 3 body image and his embarrassment and the social restrictions which had been imposed upon him, I think it quite wrong to suggest his Honour overlooked the thrust of what Dr Dent was saying. Accordingly, I do not think there should be any adjustment to the general damages to counter the reduction in the award resulting from mechanical errors. ORDERS For these reasons I think the following orders should be made: (1) Appeal allowed. (2) Judgment of Judge Armitage set aside except as to costs and, in lieu thereof, enter judgment in favour of the respondent in the sum of $33730, such judgment to take effect from 25 March 1991. I would order that the appellant pay two-thirds of the respondent's costs. I should add that I make this order having regard to the fact that the mechanical adjustments should have been successfully effected either with the rules or by discussion with the respondent's legal advisers. If any of those steps had been taken there must have been a real prospect that the appeal would have been resolved. Kirby P I agree. Handley JA I agree. I understand that the concluding remarks of Clarke JA were directed to the fact that there was no need for this case to proceed to a hearing in this Court on the two issues in which the judgment below has been varied. Kirby P: That is also my understanding. The orders of the court are accordingly as Clarke JA has pronounced. I return the photographs which, although not exhibits, were examined by the court. Counsel for the appellant: DJ HIGGS and A KOSTOPOULOS Solicitors for the appellantppellant: WILLIAM K CHAMBERS Counsel for the respondent: G PETTY Solicitors for the respondent: GEOFFREY EDWARDS and CO