TURNBULL v NATIONAL TEXTILES PTY LTD [1994] NSWCA 324

TURNBULL v NATIONAL TEXTILES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER, HANDLEY JJA 10-11 October 1994, 11 October 1994 [1994] NSWCA 324

DAMAGES — quantum — work-related injury — non-economic loss assessed at 45 per cent of a most extreme case — whether inadequate — held: it was not — no question of principle.

DAMAGES — quantum — future economic capacity — whether award inadequate — held: it was — no question of principle.

WORKERS' COMPENSATION — appellant assessed at 45% of "the most extreme case'"' — s151G(3) refers to "'a most extreme case" — whether Master erred — held: he did not — it was merely an error of expression on his part.

Workers'Compensation Act 1987, s66, s149, s151G.

ORDERS

(1) Appeal allowed with costs.

(2) Set aside the Master's assessment and substiture in lieu thereof an award which will be $97,590.20 greater than that made by the Master. I think that means that I would substitute an award for $228,590.25.

(3) The respondent should pay the costs of the appeal and, if qualified, should have a certificate under the Suitors Fund Act. (4) The substituted judgment should take effect from 16 July 1993.

Handley JA This is an appeal by a plaintiff from an assessment by Master Greenwood of the damages to which he is entitled as a result of suffering an injury at work on 9 September 1987. The Master awarded the plaintiff a total of $252,889. The plaintiff has appealed alleging error in the assessment of his non-economic loss and his future economic loss.

Since the accident occurred on 9 September 1987, the plaintiff s damages fall to be assessed in accordance with the retrospective provisions of the Workers Compensation Act 1987 inserted by subsequent amendments.

The plaintiff suffered a serious degloving injury to his right hand when it became trapped in textile machinery. The Master assessed the plaintiff's non-economic loss on the basis of 45 per cent of a most serious case in accordance with s151G of the Act. The plaintiff submits that the Master erred in law in reaching this assessment and that, in any event, the assessment is grossly inadequate and that the Master should have allowed a much higher proportion of the maximum award.