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. If one sought to discern the average rate per week over a period of six or seven years, necessary to arrive at an award of $70,000 using the 3 per cent discount tables, one would arrive at a figure of $212 net per week. This, counsel submits, was quite inconsistent with the earlier finding and both insupportable on the evidence and wrong as reflecting some mathematical miscalculation. Counsel for the respondent replies to these submissions by saying that they are based upon a misconceived foundation. The finding, they say, was that she would have suffered no loss for an appreciable part of the nine and a half years and was likely to have suffered loss flowing from her disability only for a period of about two years prior to the trial. If this is the correct assessment, then counsel points out that a net figure of $212 per week is easily discerned. In his judgment, his Honour expressed satisfaction at the fact that at the time of the accident, the respondent was a partner with her husband in a building firm in which she was entitled to share in the profits. He went on to hold that he was not satisfied she was entitled to any salary but that she was entitled to share in the profits. His Honour then noted that the firm had ceased business as a result of business difficulty and that seems to have occurred about two years prior to trial. 2 UNREPORTED JUDGMENTS The respondent's case, as summarised by his Honour, was that when this occurred the respondent would have returned to work as a nursing aide which was work which she had done before the accident. His Honour then proceeded to say that, in view of his acceptance of her case, that she would have worked as a nursing aide if she had not been injured, he proposed to award her damages assessed, using as a guide, the rates of salary payable to nursing aides since 1988. The award rates for 1988 through to the date of trial varied on a weekly basis from $9.08 to $10.39 and on Saturdays and Sundays, varied from $13,63 an hour to $15,59 an hour and $15.89 an hour to $18.18 an hour respectively. An overall assessment of those figures would produce an approximate average weekly gross wage for 38 hours at a modest approximate hourly rate of $12. That is $456 per week gross or approximately $370 net weekly. Upon the basis that his Honour used figures approximating those I have set out as his guide, it would have bene quite appropriate to allow the respondent's loss calculated on a net weekly figure of $212 both as to the past and the future. There would appear, however, to be no basis upon which allowance of $65 could have been arrived at and, indeed, such an award would seem not to have reflected his Honour's general conclusions. In my opinion, there can be little doubt but that his Honour declined to award the respondent any loss for the past during her involvement in the partnership with her husband while it remained profitable. Upon the basis that it had ceased operating about two years before the trial his Honour was required to calculate an appropriate figure to give effect to his finding that she would then probably have worked as a nursing aide. Upon that view of his Honour's judgment, it would seem to me that there is simply no basis in the ground of appeal in so far as it seeks to rely upon the difference between an estimated $65 per week for the past and $212 or thereabouts per week for the future. The second basis upon which the challenge is made is that the assessment of $70,000 is, in all the circumstances, too high given the findings which I have already mentioned, but I do not think that once it is seen that the first basis upon which the challenge is mounted is erroneous, there is any reason to support this ground of appeal. During argument, counsel referred to some evidence which tended to suggest that the business had not ceased two years prior to the trial as his Honour had indicated. It is, I think, true to say that the evidence was not very clear on this matter but nonetheless, there is material upon which his Honour could have come to the conclusion that during that two year period the respondent was receiving nothing from the business and would, if uninjured, have gone to work as a nursing aide. In addition, of course, there is no challenge to the calculation or the allowance for past loss of wages. I would, accordingly, reject the first ground of appeal and in accordance with counsel's concession, the second also. It follows that, in my opinion, the appeal should be dismissed with costs. Handley JA I agree. Samuels AJA I agree. Clarke JA: The orders of the Court are that the appeal is dismissed with costs. URJ ROVIS v ZULLO (Samuels AJA) Counsel for the appellant: CT Barry Solicitors for the appellant: Maurice Marshan, Five Dock Counsel for the respondent: GM Meadows Solicitors for the respondent: TJ Christie QC and S Deane-Johns