Newcastle Tyre Service v Elliott [2001] NSWCA 254

New South Wales Court of Appeal

CITATION : Newcastle Tyre Service v Elliott [2001] NSWCA 254 FILE NUMBER(S) : CA CA 40818/00 HEARING DATE(S) : 1 August 2001 JUDGMENT DATE : 6 August 2001

PARTIES : Newcastle Tyre Service Pty Limited t/as Richards & Deal Discount Tyres (Appellant) Ricky Bruce Elliott (Respondent) JUDGMENT OF : Mason P at 1; Powell JA at 2; Studdert AJA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT 46/98 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

COUNSEL : G. Petty SC/R. De Meyrick (Appellant) L. King SC/I. Neal (Respondent) SOLICITORS : Sparke Helmore (Appellant) Bale Boshev & Associates (Respondent) CATCHWORDS : DAMAGES - measure of damages - employment injury - whether assessments for non economic loss and for economic loss manifestly excessive. LEGISLATION CITED : Workers' Compensation Act, 1987 DECISION : See para 35

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40818/00 MASON P POWELL JA STUDDERT AJA

Monday 6 August 2001

NEWCASTLE TYRE SERVICE PTY LIMITED v RICKY BRUCE ELLIOTT

JUDGMENT

1 MASON P: I agree with Studdert AJA. 2 POWELL JA: I agree with Studdert AJA. 3 STUDDERT AJA: This is an appeal from an assessment of damages made by her Honour Judge English in the District Court at Newcastle on 28 September 2000. On that date, her Honour directed the entry of judgment for the plaintiff in the sum of $269,106.46. 4 The appellant, Newcastle Tyre Service Pty Limited, employed the respondent, Ricky Bruce Elliott, as a general hand and tyre fitter. Her Honour found that in the course of his employment with the appellant the respondent sustained injury on 5 May 1997 when tyre rims fell, striking his right hand. Her Honour found that the respondent sustained his injuries as a consequence of the appellant's negligence and the defence of contributory negligence was rejected. Those findings are not challenged here. 5 The damages awarded were made up as follows: Allowance for non economic loss $77,857.50 Allowance for economic loss: Loss of earnings to date 42,720.00 Future loss of earning capacity 137,834.00 Out of pocket expenses 6,098.18 Fox v Wood adjustment 4,596.78 $269,106.46 6 The assessment of damages was governed by the Workers' Compensation Act and it was submitted by the appellant that the above assessment manifested error in that: