QBE INSURANCE LTD v HUGGINS [1998] NSWCA 178

QBE INSURANCE LTD v HUGGINS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, BEAZLEY JJA and FITZGERALD AJA 5 November 1998, 23 December 1998

[1998] NSWCA 178

WORKERS Compensation — appeal by employer's insurer in relation to the calculation of past wage loss, interest on past wage loss, future wage loss and loss of superannuation — trial judge's approach defective.

Sheller JA I agree with Fitzgerald AJA. Beazley JA I agree with Fitzgerald AJA.

Fitzgerald AJA On 11 January 1984, when he was aged 37, the respondent suffered a very severe and debilitating injury to his dominant right hand when it became caught in the mechanism of a grain auger screw on a mobile seed grading machine which he was operating in the course of his employment. Liability was admitted, but the respondent's employer's insurer has appealed against a judgment in favour of the respondent in the sum of $644,524.50, which was given in the Common Law Division on 25 August 1997. The appellant challenges four components in the damages awarded, namely:

"Past wage loss $213,121.00 Interest on past wage loss $213,232.00 Future wage loss $111,863.40 Loss of superannuation $ 14,045.80"

The directly material parts of the judgment are as follows:

"Past Wage Loss

At the time of his injury the plaintiff's employment with the defendant was governed by the Engine Drivers etc General (State) Award (NSW). While initially a matter of dispute a letter form Alf Hannaford & Co Pty Ltd dated 15 March 1984 indicates that the plaintiff's award rate under the relevant New South Wales State award was $233 per week This coincides with advice from the relevant New South Wales department when the award rate for a Group 4 plant operator under the award I have referred to was in that sum.

At the time of the injury the plaintiff was earning some 25 percent in excess of the relevant award rate. It seems in my view in assessing the plaintiffs earning capacity, uninjured, prior to trial, a correct approach to take is to look at the relevant award rates current from the date of injury to the date of trial and add 25 percent. Using this basis, an analysis carried out by Mr Norman Hilton, chartered accountant, in which he deducted any earnings revealed by the plaintiff's taxation returns during the period, gave rise to a net past loss of $213,121. I accept that Mr Hilton's approach is correct and I thus award the plaintiff that sum.