ARKLOW PTY LTD (TRADING AS CHAMPION PRESS) v TAAVAO [1992] NSWCA 10

ARKLOW PTY LTD (TRADING AS CHAMPION PRESS) v TAAVAO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and Cripps JJA 11 June 1992, 11 June 1992 [1992] NSWCA 10

COMPENSATION — PAIN AND SUFFERING — WORKERS COMPENSATION ACT 1987 — LEGAL ERROR — JUDGE'S DISCRETION IN MAKING AWARD — CORRECT APPROACH TO S67 WORKERS COMPENSATION ACT.

Mahoney JA I will ask Clarke JA to deliver the first judgment.

Clarke JA The respondent sustained a crush injury to his left hand at work on 11 March 1988. In due course he brought a claim for compensation against his employer who is the appellant here seeking awards under s66 and s67 of the Workers' Compensation Act 1987.

So far as the amount payable under s66 was concerned the parties reached agreement at the commencement of the proceedings and an award was made. In accordance with the agreement interest was also allowed on the amount awarded under s66 and there is no complaint made to this Court in respect of the amount awarded or the interest allowed on the amount awarded under s66.

The claim under s67, which in broad terms was a claim for a sum of money "by way of compensation for pain and suffering resulting from the loss", was contested.

His Honour having considered all the facts allowed an amount of $30,000 and there is no suggestion that that award was vitiated by legal error.

His Honour then turned to consider whether he should award interest in respect of the sum of $30,000 or any part thereof and, if so, what amount should be awarded.

His determination was that interest should be allowed on the whole of the sum of $30,000 from the date of the injury to the date of trial and that that interest should be calculated at the varying rates set out in the judgment.

The appeal, which is limited to errors of law, challenges the award of interest on the whole of the sum of $30,000. It is submitted by the appellant that that sum represented compensation for pain and suffering, both in relation to the period between injury and hearing and the period after the making of the award and that is inconsistent with well established authority and the settled practice of the courts in New South Wales to allow interest in respect of the latter period. It was contended therefore that the exercise by his Honour of his discretion was relatively affected by legal error insofar as he allowed interest upon that part of the award which related to pain and suffering after the date of the hearing.