GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v KADADI [1992] NSWCA 85

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v KADADI

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and HANDLEY JJA 23 March 1992, 23 March 1992

[1992] NSWCA 85

DAMAGES — loss of economic capacity — trial judge (Urquhart DCJ) allows on basis of total incapacity to trial, and thereafter — concedes that the approach is "arbitrary" — held (Kirby P, Clarke and Handley JJA concurring): (1) The approach showed error. (2) A safer approach was to calculate the plaintiff's loss of capacity in terms of his evidence (as he was found to be an honest witness) and the medical evidence of experts (which was uncontested). (3) Upon that basis, upon a reassessment for loss of economic capacity, including partial incapacity for a time, the allowance should be reduced from $63,432.75 to $45,000 and the judgment adjusted accordingly.

INTEREST — allowance of interest on Fox v Wood component — error as that component is for an obligation which only arises at the moment the judgment takes effect.

Haines v Bendall (1991) 172 CLR 60 referred to.

Kirby P This is an appeal from a judgment of Urquhart DCJ in the District Court. The judgment arose out of a motor vehicle accident in respect of which the appellant accepted liability to the respondent. The judgment entered by Urquhart DCJ included the following components:

General damages for pain and suffering $25,000.00

Loss of earning capacity 63,432.75

Tax paid on worker's compensation of $1,345 together with interest thereon 2,286.50

Interest on economic loss 4,653.66

Agreed out-of-pocket expenses 3,371.37

$98,744.28

The appellant at the hearing today sought and obtained the leave of the Court to substitute four grounds of appeal for those originally pleaded. They were:

(1) That the trial judge had erred in assessing economic loss in the sum of $63,472.75;