JOHN FAIRFAX AND SONS LTD v ARMAGHANIAN [1996] NSWCA 279

JOHN FAIRFAX & SONS LTD v ARMAGHANIAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, COLE JJA and Simos AJA 27 August 1996

[1996] NSWCA 279

PERSONAL INJURY — injury during employment — assessment of damages — failure to give reasons in support

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Sheller JA Ex tempore

This is an appeal from a decision of Bruce J which was delivered in two parts on 5 March 1996 and 2 April 1996. The plaintiff was injured on 13 April 1987 during the course of his employment by the respondent who is the appellant in this appeal. The injury was described as a lifting injury resulting from the use of a power hacksaw.

His Honour found for the plaintiff on liability and assessed damages which, after deduction for compensation payments, came to $336,384. The appellant's challenge to the amount awarded was directed to the assessment for past and future economic loss. His Honour had found that the plaintiff had not been, as he claimed, totally incapacitated for work. The past economic loss was assessed from 11 May 1989 to the time of the hearing, which was in May 1995 to be $99,044. The future economic loss was assessed to be $168,493.

Bruce J's assessment of these amounts was based upon the finding that, but for the injury, the plaintiff would have been capable of earning $626 per week and had a residual earning capacity which his Honour valued at $250 per week. His Honour said:

"T am not satisfied on an assessment of the plaintiff in giving his evidence that he is not capable of performing a significant amount of work for virtually all of the time.

The plaintiff is not and will not be capable of performing his pre-accident work but nevertheless he is capable of working in some form of remunerative employment. There is no evidence of his likely earnings in such employment but doing the best I can I estimate that since his employment ceased he has had an earning capacity in the order of $250 per week."