A MOUSSA v WESTRAY ENGINEERING PTY LTD [1994] NSWCA 211

MOUSSA v WESTRAY ENGINEERING PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, CLARKE and COLE JJA 30 November 1994, 30 November 1994

[1994] NSWCA 211

Cole JA The appellant, Amira Moussa, was injured on 4 November 1981 whilst employed by the respondent. She sought and obtained a workers compensation award. Subsequently she sued for damages. In a judgment delivered 9 February 1990, Armitage DCJ found negligence by the respondent employer was established but entered a verdict for the defendant. Armitage DCJ found that the appellant was entitled to the following damages:

1. General damages:

(a) Past 17,000.00 (b) Future 3,000.00 2. Economic loss:

(a) 4 November 1981 - 12 February 1982 2,100.00 (b) 12 February 1982 - 8 April 1988 NIL

(c) 9 April 1988 and thereafter NIL

3. Out of pocket expenses 12,092.09 Total 34,192.09

In addition his Honour held that the appellant was entitled to interest on the past general damages and economic loss, awarded at the rate of 7.5 per cent per annum. The interest was not quantified.

The respondent claimed by way of defence an offsetting benefit pursuant to the Workers Compensation Act 1926, s63(5) in respect of payments made to the appellant. Those payments totalled $52,760.04. Once offset, the appellant's entitlement from the respondent pursuant to his Honour's findings was reduced to nil. In those circumstances a verdict was entered far the defendant.

The appellant has appealed on grounds that the general damages awarded were "manifestly inadequate", that past economic loss should not have been restricted to the 12th of February 1982 and that future economic loss should have been awarded.

In addition the appellant has argued that his Honour erred in failing to adjourn the proceedings to enable a Dr Guigiris to attend to give oral evidence and that his Honour erred in determining he had no discretion to admit the reports of Doctor Guirgis notwithstanding his unavailability.