SPINKOVSKI v PUNCHBOWL BRICK and PIPE COMPANY PTY LTD [1992] NSWCA 236

SPINKOVSKI v PUNCHBOWL BRICK and PIPE COMPANY PTY LTD SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

CLARKE, MEAGHER, and CRIPPS JJA 7 July 1992, 11 August 1992

[1992] NSWCA 236

PERSONAL INJURY, INTEREST, PAST ECONOMIC LOSS FACTS: Appellant sues Respondent on accident which occurred in 1979 and case is heard in 1991. Jury brings in Verdict of $252,000.00 in favour of appellant. Judge enters judgment for appellant in the sum of $143,672.00, estimating $120,000.00 (net) for past economic loss. Between accident and trial appellant received net amount of $96,312.34 (gross $107,321.92), in workers' compensation payments. Judge awards interest on past economic loss in sum of $11,969.00 by deducting gross total of workers' compensation payments. Judge awards interest on past economic loss in sum of $11,969.00 by deducting gross total of workers' compensation payments from the figure for past economic loss, and calculates interest at 8% for 11.75 years. Appellant says judge erred in deducting gross workers' compensation figure from net figure for past economic loss, saying net figure should have been deducted.

HELD: (per Meagher and Cripps JJA, Clarke JA contra): The appellant, through its counsel, elected not to take the point at trial, knowing it was there. In these circumstances, an appellate court should not entertain.

British Transport Commission v Gourley [1956] AC 185 Cullen v Trappell (1980) 146 CLR 1 Fox v Wood (1981) 148 CLR 438 Eggins v Brooms Head Bowling and Recreational Club (1986) 5 NSWLR 521 Morawski v State Rail Authority (1988) 14 NSWLR 374 Calin v Greater Union Organisation Pty Ltd (1991) 65 ALJR 426 Meares v Coal and Allied Industries (unreported, Court of Appeal, 27 May 1986) O'Sullivan v Watson (1986) 7 NSWLR 693 Mehta and Anor v Commonwealth Bank of Australia [1990] ATPR 51,418 Cropper v Smith (1884) 26 ChD 700 Kettleman and Ors v Hansel Properties Ltd [1987] AC 189 Nominal Defendant v Cameron (unreported, Court of Appeal, 2 August 1988) Plak v Sutherland and Anor (unreported, Court of Appeal, 12 August 1988) GSA Industries v NT Gas Ltd (1990) 24 NSWLR 710 Proprietors of Strata Plan No 20754 v Hawkesbury City Council (unreported, Court of Appeal, 25 September 1991) Government Insurance Office of New South Wales v MP Manettas and Ors (unreported 8 July 1982) State Pollution Control Commission v Australian Iron and Steel (unreported, Court of Criminal Appeal, 15 June 1992) United Motors Retail Motors Ltd v AGC Ltd (unreported, Supreme Court of South Australia, 24 December 1991) Coulton v Holcombe (1986) 162 CLR 1 Batchelor V Burke (1981) 148 CLR 448 Montibeler v Rosa Malfone and Anor (unreported Court of Appeal, 15 August 1979) Bennet v Jones and Anor (1977) 2 NSWLR 355 Pheeney v Doolan (1977) 1 NSWLR 601