NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO OF NEW SOUTH WALES) v WALLACE [1993] NSWCA 200

NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO OF NEW SOUTH WALES) v WALLACE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and CRIPPS JJA

22 March 1993, 22 March 1993

[1993] NSWCA 200

DAMAGES — quantum — no question of principle.

Meagher JA I will ask my brother Handley JA to give the first judgment.

Handley JA This is an appeal by the defendant from an assessment of damages by Master McLaughlin. The plaintiff was a single man aged 58 at the date of injury and 63 at the date of trial. He sustained severe head injuries in the accident and was unconscious for over three weeks.

The Master found that the disabilities from which the plaintiff suffered were essentially disabilities resulting from brain damage and that he suffered from gross cognitive impairment. He was described by Dr John Lawson, who gave evidence on behalf of the defendant, as being grossly intellectually and neurologically impaired. He has little ability to communicate, suffers from incontinence of the bowel and the bladder and is totally dependent upon others for all personal activities, including bathing, toileting, dressing and eating.

The Master assessed damages at $1,024,832.19, to which were added the fees of the Protective Commissioner for administering the verdict.

The defendant has propounded only four modest challenges to this award. The first in relation to interest on past loss of wages is not contested. The learned Master calculated such interest without allowing for the fact that the plaintiff had received workers compensation payments. These payments will have to be refunded from the damages but without interest. The plaintiff would be over compensated if he were awarded interest on his past loss of wages without allowing for the receipt of workers compensation during this period. This is established by Bachelor v Burke (1981) 148 CLR 448. The agreed deduction from the verdict is $16,596.11.