TIPPER v WILLIAMS (NO 2) [1994] NSWCA 312

TIPPER v WILLIAMS (No 2)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 26 October 1993, 6 May 1994 [1994] NSWCA 312

DAMAGES — FUTURE' EARNING' CAPACITY — WORKERS' COMPENSATION ACT 1926 — CHOICE BETWEEN AMOUNT ON REDEMPTION OR DISCOUNTED ENTITLEMENT UNTIL RETIREMENT — VICISSITUDES — NOTIONAL DATE OF JUDGMENT

FACTS: Appeal on quantum by a solicitor held to be liable for not prosecuting his client's damages claim within time.

HELD:

(1) Future entitlements under the Workers' Compensation Act, 1926 should have been taken into account, and to this extent the award was too high.

(2) The amount which must be deducted in this case is the discounted value of weekly payments until retirement, not the lesser amount which would have been obtainable if the rights were redeemed under s15 of the Act. The latter would have required both employer and employee to agree upon a figure, and in the 15 years since injury this had not occurred. The figure, discounted for vicissitudes, is to be taken off lost future earning capacity, but the actual amount received in benefits between the notional date of calculation and judgment below must be added back, this amount being irrelevant if the notional date under the Act determines the division between past and future.

CASES:

>Todorovic v Waller (1981) 150 CLR 402.

Scott & Ors v Echecaray [1991] Aust Tort Reports 69129.

Clarke JA Following the delivery of judgment in this case the court received evidence on the outstanding issue, viz - What amount should be deducted from the damages awarded on account of the respondent's continuing Workers' compensation entitlement? In my judgment I observed that the appellant's counsel argued that the amount which should be deducted was $89,151 but that the respondent's counsel contended that the appropriate figure was the amount which would be likely to be received on a redemption of the respondent's Workers' compensation rights and that would be likely to be a much smaller figure.