ROVIS v ZULLO [1992] NSWCA 216

ROVIS v ZULLO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY JJA and SAMUELS AJA 10 August 1992, 10 August 1992

[1992] NSWCA 216 DAMAGES — INTEREST — NO QUESTION OF PRINCIPLE.

Clarke JA This is an appeal from the judgment of Judge Gallen given on 28 September 1990 in which he entered judgment for the respondent in the sum of $206,058.77.

The original Notice of Appeal contained six grounds raising various challenges to the award. That notice has, in effect, been abandoned and a supplementary notice filed with leave in which the appellant raises only two grounds.

The first is that the award for future loss of earning capacity was excessive. The second, that the interest on the past general damages should have been assessed using 2 per cent. It is accepted by counsel for the appellant that the second ground of appeal only arises for consideration if he is successful in making good the first challenge and the Court is called upon to reassess. Hence, the fate of this appeal depends upon whether the first ground is made out.

His Honour allowed past loss of wages at $32,000 and $70,000 for the impairment of future earning capacity. Counsel for the appellant, in both the written and oral submissions, points out that nine and a half years have passed between the date of the accident and the trial. Upon this basis, he contends that the amount for past loss of wages approximated $65 per week for the whole period. Counsel notes that no complaint is made in relation to that assessment of the plaintiff's past loss of earning capacity.

He submits that in these circumstances an award of $70,000 expressly to compensate the respondent for her impaired earning capacity reflecting in possible loss to her during a period of six or seven years into the future, was clearly excessive.