SIMON ENGINEERING (AUSTRALIA) PTY LTD v BRIEGER [1990] NSWCA 165

SIMON ENGINEERING (AUSTRALIA) PTY LTD v BRIEGER [1990] NSWCA 165

The trial judge erred by (1) failing to account for the period the respondent would have spent overseas on a holiday and (2) misclassifying an additional 22% salary as a lump sum superannuation payment rather than a periodic taxable benefit, resulting in an excessive damages award for impairment of earning capacity. The correct assessment for damages was recalculated to $295,201.20, with adjustments to past and future economic loss and general damages in line with correct principles and agreed facts between the parties.

Parties
Appellant: Simon Engineering (Australia) Pty Ltd; Respondent: Brieger
Jurisdiction
Australia
Judgment Date
06 September 1990
Procedural Posture
Civil Appeal / Judgment on Appeal
Outcome
Appeal allowed. Judgment below set aside in part. Judgment for respondent for $295,201.20.
Legal Topics
Negligence, Damages Assessment, Dust Diseases, Mesothelioma, Impairment of Earning Capacity, General Damages
Torts Personal Injury Negligence Damages Assessment Dust Diseases Mesothelioma Impairment of Earning Capacity General Damages

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Parties

Simon Engineering (Australia) Pty Ltd

Appellant

Brieger

Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the trial judge erred in assessing damages for impairment of earning capacity and general damages
  2. 2 Appropriate measure of damages for loss of future earning capacity given respondent's circumstances and evidence
  3. 3 Whether superannuation/allowance should be treated as a lump sum or periodic income

Ratio Decidendi

The trial judge erred by (1) failing to account for the period the respondent would have spent overseas on a holiday and (2) misclassifying an additional 22% salary as a lump sum superannuation payment rather than a periodic taxable benefit, resulting in an excessive damages award for impairment of earning capacity. The correct assessment for damages was recalculated to $295,201.20, with adjustments to past and future economic loss and general damages in line with correct principles and agreed facts between the parties.

Court Disposition

Appeal allowed. Judgment below set aside in part. Judgment for respondent for $295,201.20.

Orders

  • Appeal allowed.
  • Verdict and judgment of O'Meally J, except as to costs, set aside.