FAIRFIELD CITY COUNCIL v KALO [1994] NSWCA 93

FAIRFIELD CITY COUNCIL v KALO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and POWELL JJA 5 September 1994, 5 September 1994

[1994] NSWCA 93

Appeal and New Trial — Quantum of damages — Inadvertent transposition of figures by trial judge when calculating.

Priestley JA. Powell JA will give his reasons first.

Powell JA This is an appeal from a Judgment delivered, and a verdict entered, by McInerney J in an action which had been brought by the Respondent ("Mr Kalo") against the Appellant, Fairfield City Council ("the Council"), his former employer, seeking damages for the Council's alleged negligence and breach of statutory duty.

Although a variety of grounds of appeal has been taken in the Council's Notice of Appeal, and although none has been formally abandoned, in substance, the only issue which has been debated on the hearing of the appeal is whether or not the Court should intervene to rectify what McInerney J was later to describe as an error on his part in calculating the damages payable by the Council to Mr Kalo.

The error in question related to the amounts properly to be allowed by McInerney J for Mr Kalo's past economic loss, for interest thereon and for Mr Kalo's future economic loss, the source of the error being found to lie in the fact that, while, at the hearing, Mr Kalo claimed that he had prior thereto, been, and that he continued to be, totally incapacitated, the Council asserted, and McInerney J held the true position was, that, except for a short period when he had been totally incapacitated, Mr Kalo retained a significant residual earning capacity which he chose not to use.

The evidence which was placed before McInerney J to enable him to calculate the amounts which could properly be allowed for economic loss, both past and future, can best be described as sparse in the extreme; nor were his Honour's difficulties eased by the fact that such little evidence as there was put before him in a way which was apt to lead to confusion. However, having considered all the material that was placed before him, McInerney J concluded that, by drawing upon certain of the material contained in Exhibit "H" - the principal exhibit upon which, in this respect, Mr Kalo had relied - he could calculate that, as opposed to a nett earning capacity if he had been uninjured, of the order of $390.00 per week, Mr Kalo, following his period of total incapacity, had a continuing earning capacity of $220.00 per week nett. Upon the basis of the figures which he thus determined, his Honour assessed Mr Kalo's continuing loss of earning capacity at 40 per cent of his pre-injury capacity.