NSW INSURANCE MINISTERIAL CORPORATION v CHALLITA [1994] NSWCA 224

NSW INSURANCE MINISTERIAL CORPORATION vy CHALLITA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLY, MEAGHER and HANDLEY JJA 14 October 1994, 14 October 1994

[1994] NSWCA 224 DAMAGES — quantum — economic loss — no question of principle.

DAMAGES — quantum — past and future economic loss — motor vehicle accident — respondent a partner and labourer in concreting business — whether award of economic loss excessive — held: it was — loss of capacity for work sounds in damages only to extent to which it is or may be productive of loss — respondent suffered no economic loss by being prevented from working as a concrete labourer since able otherwise to use his talents to advantage in the business. Baker v Graham (1961) 106 CLR 340 applied.

ORDERS

1. Appeal allowed.

2. The judgment of his Honour Judge Solomon set aside except as to liability and costs. In lieu thereof there be substituted judgment for the plaintiff which would incorporate the amounts for out of pocket expenses and general damages which have not been disputed, the award for economic loss for the six months during which the plaintiff was totally incapacitated and the award made by his Honour for later economic loss up to 4 May 1989 and interest on those amounts as appropriate.

3. Set aside the balance of the award.

4. The appellant is to have the costs of the appeal. The respondent is to have a Suitors Fund certificate. The parties to bring in short minutes to reflect these reasons and a recalculation of the interest on past economic loss.

Priestley JA I will ask his Honour Mr Justice Handley to give his reasons first.

Handley JA This is an appeal from a decision of his Honour Judge Solomon given on 5 August 1993. His Honour was called upon to assess the damages payable to the plaintiff for injuries sustained by him in a motor vehicle accident which occurred on 4 May 1985. His Honour awarded $138,609.62 comprising out of pocket expenses, general damages of $35,000, past and future economic loss and interest on past economic loss. The appellant has challenged the awards for past and future economic loss.