CAMELO CATENA v GEORGE EDWARD CORNISH [1993] NSWCA 51

CAMELO CATENA v GEORGE EDWARD CORNISH SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, MEAGHER JA and HANDLEY JA 1 November 1993

[1993] NSWCA 51

FACTS

The appellant sought to challenge an award of damages for economic loss flowing from a work injury sustained by the respondent, submitting that the respondent failed to discharge his onus of proof on the issue of future employment capacity.

HELD:

The submission must fail. Firstly, there were a number of assumptions which led his Honour to underestimate economic loss. Secondly, the onus was really upon the appellant, ie to prove that the respondent failed to mitigate his loss. Thirdly, the facts indicated that his chances of future employment were negligible, and the question of onus therefore never arose.

Meagher JA. In this case the appellant appeals against a verdict which Wood J gave the plaintiff on 30 July 1991 in the sum of $295,189. The plaintiff was born in 1936 in the United Kingdom and migrated to this country in 1954. From 1954 to 1956 he was employed in various manual occupations. From 1966 to 1976 he worked as a self-employed motor mechanic in Jerilderie where he became very skilful.

In 1976 he sold his own business, advancing the reason that he could not manage the paperwork involved, and became employed elsewhere, at Jerilderie Motors doing mechanical repairs, panel beating and spray painting. He was very successful in that occupation, to the extent that his employer who gave evidence, said that because of the conspicuous speed with which he worked he was paidthe statutory award wage plus 60%; his employer was entirely satisfied with him.

Then on 19 April 1992 was the accident with which we are concerned and as to which there is no doubt that the appellants bear the responsibility. He eventually returned to work and, with some interruptions, resumed work but on reduced hours. After the accident his employer said in evidence that he became slow and he was, to quote the employer's words, 'uneconomic.' His employer made it plain that as soon as this litigation subsides he will be dismissed.