JEFFREY v HARRIS [1995] NSWCA 219

JEFFREY v HARRIS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 26 June 1995

[1995] NSWCA 219

Mahoney JA. This is an application for a stay of execution upon a judgment given by McInerney J on 17 May 1995. The principles upon which the stay is to be granted or not granted are not in issue and it is not necessary for me to canvass them.

The judgment given by his Honour was for the sum of $80,926.44. The largest component of this was general damages of $60,000 and the balance consisted of agreed out-of-pocket expenses, interest on general damages, past wage loss, interest on past wage loss and a further sum for diminished earning capacity.

An appeal has been brought both on grounds going to liability and upon grounds going essentially to quantum. However, the matter has been dealt with before me on the basis that the likelihood of liability being contested is remote and that the real issue is the quantum of damages.

Counsel for the applicant has submitted in essence two things: one, that the judge was wrong in not making an apportionment of the damages by reason of contributory negligence on the part of the plaintiff; and, secondly, that the award of general damages of $60,000 were too high.

Each of those matters is arguable. I did not attempt to assess the degree of arguability or the likelihood of either of them being successful. But it is obvious that each matter may be argued and because of the manner in which it has been treated before me I feel that a stay should be granted but upon condition that the defendant pay to the plaintiff a significant amount of the verdict.

I think that the whole of the amount other than general damages should be paid and that in respect of general damages, an amount of $20,000 should be paid. That would mean that the amount to be paid as a condition of the stay is $40,926.44. In specifying the amount of $20,000, I do not in any way indicate my view that that is an appropriate award for general damages: far from it. But in the circumstances and having regard to the way in which the matter has been argued, I think it is appropriate to act upon the basis that that sum be paid.