HEILER v NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO) [1994] NSWCA 126

HEILER v NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 8 July 1994, 8 July 1994

[1994] NSWCA 126

DAMAGES: economic loss; second job cash in hand; evidence of earnings; conservative assessment

The appellant was involved in a motor vehicle accident whilst returning home from work at Banjo's Restaurant, Lansvale. He challenged the Master's award at trial for both future and past economic loss, claiming that the Master had not taken into account the amounts which the appellant earned while working at the restaurant cash in hand.

The Master based his assessment of economic loss upon the appellant's wage as a special meter reader for the Sydney County Council but found that whilst accepting he had worked there, there was insufficient evidence evidence to support the appellant's claim to have earned $250 per week from the restaurant.

On appeal the Court found that there was sufficient evidence for the Master to have made a finding that the appellant had received $250 per week, but that that sum should be discounted to allow for taxation and any penalty which would be imposed if the matter came to the attention of the Commissioner of Taxation. Accordingly, the figure of $100 per week was added to the $200 per week allowed by the Master to determine what the future loss would be.

Sheller JA This is an appeal from a judgment given by Master McLaughlin on 29 July 1992. The Master gave the plaintiff a verdict for $507,748. Components of that total were an amount of $108,955 for past economic loss and $130,679 for future economic loss and then an amount for interest.

The appeal is limited to a challenge to the first two amounts, which the appellant plaintiff says should be higher for the reason that in both cases the Master, refused, except in a minimal way, to take into account amounts which