NYMAN v VALMAS [1997] NSWCA 235

NYMAN v VALMAS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Mason P, PRIESTLEY JA and BEAZLEY JA 12 May, 26 June 1997 [1997] NSWCA 235

As a result of the appellant solicitor's negligence, the respondent's common law personal injury proceedings became statute barred. The trial judge awarded the respondent damages in respect of his physical injuries and disabilities, as well as damages for stress and anxiety suffered as a direct result of the appellant's negligence.

The appellant appealed against the award of damages for stress and anxiety on the basis that there was no evidence to support such an award, or alternatively, on the basis that the award was excessive. The appellant also argued that the trial judge erred in the calculation of interest.

HELD:

(1) Appeal allowed.

(2) There was no evidence of stress or anxiety suffered by the respondent relating to the appellant's tortious conduct upon which to base the award of damages.

(3) As the cost of a notional trial against the employer assessed as at the notional trial date should have been deducted from the notional judgment, interest should be assessed on the award only after deduction of those costs.

(4) The filing of a submitting appearance in the form of Part 51 r 13B does not denote consent to the orders sought. It is a means of facilitating notice to the Court that the party does not propose to put any argument to the Court.

Mason P. I agree with Beazley JA. Priestley JA. I agree with Beazley JA.

Beazley JA. This appeal raises two short points. First, whether the trial judge erred in awarding the respondent damages for stress and anxiety suffered as a result of the appellant's negligence in allowing the respondent's common law proceedings to become statute barred. A subsidiary question to that issue arises as to whether, in any event, the damages awarded were excessive. Secondly, whether his Honour erred in the calculation of interest.