TIPPER v WILLIAMS [1993] NSWCA 269

TIPPER v WILLIAMS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and MEAGHER JJA 13 October 1992, 12 May 1993

[1993] NSWCA 269

ASSESSMENT OF DAMAGES — Appeal by solicitor sued in respect of failure to institute proceedings against an employer in respect of an industrial accident — liability admitted — question as to quantum raised the following issues: (i) Failure to make a deduction from award to take account of continuing entitlement to payments under workers' compensation legislation in respect of impairment of future earning capacity — whether point adequately taken at first instance — oral submissions did not sufficiently take the point — written submissions raised the issue. Held: point was adequately taken (per Priestley and Clarke JJA; Meagher JA dissenting).

The point was a legal point — did not depend upon evidence — alternatively, as the judgment is to be set aside in respect of other errors a possible consequence of which is that a new trial would be ordered at which the point could be taken a court reassessing damages in the absence of a new trial should be free to do so on the correct basis. On a reassessment the first respondent should be permitted to adduce fresh evidence relating to impairment of earning capacity (per Clarke JA). (ii) Interest awarded at 18 per cent pa — this was a commercial rate — it was open to his Honour to assess damages on the basis that the sum would have been invested in its entirety. (iii) Taxation — consistent with the assessment hypothesis adopted by the trial judge (ii) allowance should have been made for taxation (per Clarke and Meagher JJA; Priestley JA dissenting).

CAUSATION COSTS — Indemnity costs awarded — reasons of trial judge not put before the Court — costs order was within discretion of trial judge. Held: Not possible to find that his Honour erred in the award of costs.