VDS ENGINEERS PTY LTD v SKELE [1998] NSWCA 247

VDS ENGINEERS PTY LTD v SKELE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, STEIN JJA and FITZGERALD AJA 2 November 1998, 2 November 1998 [1998] NSWCA 247

PERSONAL injuries — evidence before trial judge justified his conclusions — insufficient grounds established for interference with judgment of court below.

Fitzgerald AJA This appeal raises a small number of specific issues in relation to damages awarded to the respondent by a judge in the Common Law Division for personal injuries which he suffered as a consequence of an accident in the course of his employment on 11 December 1994. Liability was admitted. The evidence broadly indicated that the respondent, a young man about to engage upon an apprenticeship as a fitter machinist, effectively lost sixty to seventy per cent of the right upper limb function.

Two components in the respondent's total award of $706,720.66 were $325,074 for future economic loss and $57,067 for loss of superannuation benefits. Both amounts depended upon the trial judge's conclusion that, but for his injury, and the respondent would have earned $600 per week during his working life and that he was now capable of earning no more than $200 per week.

The appellant's submission is was that the trial judge failed to make an allowance for income tax (including the Medicare levy) in taking the figure of $600 per week and that the appropriate use of nett instead of gross figures would have resulted in a much lower total. It was submitted that the starting point should have been not $600 but $462 per week. However, the proposition that his Honour had taken a gross and not a nett sum was not pursued after explanation of what had taken place below.

When it was seen that his Honour did proceed on the basis of nett figures as they were put before him on behalf of the respondent, the point was made that his Honour's reasons do not support the figures which he adopted. At one point in his judgment, his Honour said that he found that the respondent: