Nominal Defendant v Byrne [2002] NSWCA 17 (14 February 2002)

Last Updated: 20 February 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Roads and Traffic Authority of New South Wales v Dimitrovski [2002] NSWCA 21

FILE NUMBER(S):

40213/01

HEARING DATE(S): 11 February 2002

JUDGMENT DATE: 11/02/2002

PARTIES:

Roads and Traffic Authority of New South Wales (Appellant)

Kire Dimitrovski (Respondent)

JUDGMENT OF: Beazley JA Stein JA Young CJ in Eq

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3672/99

LOWER COURT JUDICIAL OFFICER: Williams DCJ

COUNSEL:

J A McIntyre SC/S M Kettle (Appellant)

W P Kearns SC/E G Romaniuk (Respondent)

SOLICITORS:

Hunt & Hunt Lawyers (Appellant)

Keddies (Respondent)

CATCHWORDS:

WORKERS COMPENSATION - application of slip rule - adjustment of damages - two work injuries - need for separate assessment - future economic loss - ND

LEGISLATION CITED:

N/A

DECISION:

Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40213/01

BEAZLEY JA

STEIN JA

YOUNG CJ in EQ

Monday, 11 February 2002

ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v Kire DIMITROVSKI

Judgment

1 BEAZLEY JA: I will ask Stein JA to deliver the first judgment.

2 STEIN JA: This is an appeal by the Roads and Traffic Authority of New South Wales concerning a judgment and verdict in the District Court delivered by his Honour Judge Williams on 8 March 2001.

3 At the outset, it should be mentioned that the Court is asked to apply the slip rule in relation to the final verdict entered by his Honour should the Court dismiss the appeal presently before it. I will mention the figures now because it is the intention of the Court to dismiss the appeal.

4 There should be substituted for the figures that his Honour mentioned in his judgment (Red AB37) a verdict for the plaintiff in the sum of $571,593, in lieu of the amount there appearing, and, with the deduction made for payments by the appellant/defendant, the balance of the verdict indicated by his Honour in his judgment should be amended to $524,243. Upon the dismissal of the appeal, the amendments to the verdict and judgment by the application of the slip rule will be made and judgment given accordingly.

5 The appellant filed a Notice of Appeal with extensive grounds, but, at the outset of the hearing today, a number of paragraphs were abandoned, including ground 8 relating to indemnity costs and ground 7, paras (a) and (d) concerning future economic loss and ground 2(e) relating to liability, except in relation to what may be described as the second incident or injury of 15 June 1998. This meant that what was left in issue, as I understand it, is the question of liability in relation to the second incident of 15 June 1998 (but not the first incident of 30 November 1996), the issue of contributory negligence relating to that incident and the question of whether or not the assessment in relation to the first injury was serious for the purposes of ss 151G and 151H of the Workers Compensation Act 1987 and whether the threshold had properly been exceeded.

6 The other issue left in the appeal was his Honour's assessment of damages for future economic loss, which was said to be excessive.

7 I do not think that it is necessary to recite the facts relating to the two injuries or incidents. They are adequately and fully dealt with in his Honour's detailed and well reasoned judgment.

8 As to the question of liability for the second incident, I am of the opinion, for the reasons given by his Honour in his judgment, that his conclusions on liability were open to him. Similarly, it is my view that his Honour was entitled to conclude that he was not satisfied that the defendant/appellant had established any contributory negligence on the part of the plaintiff. That brings me, therefore, to the issue of the assessment of damages in relation to these two employment incidents.

9 It is apparent, from the way in which his Honour approached the assessment, that he made essentially one assessment in relation to both employment incidents. It seems that he should have made two and whilst at the time that his Honour gave judgement the Court of Appeal had not decided the appeal of Woolage v State of New South Wales (2001) NSWCA 256, in that judgment given by the Court on 15 August 2001 it is plain that the two separate incidents gave rise to two separate causes of action and accordingly needed to be dealt with by separate assessments.

10 However, because of a concession quite properly made by Mr McIntyre of Senior Counsel for the appellant, that if his Honour had followed the procedure set forth in Woolage, the combined total of the damages would lead to an identical figure to which his Honour came in terms of dollars, and percentages which would exceed the threshold, means that there is no utility in the Court making a specific finding that his Honour was in error and then proceeding to a reassessment which would come to precisely the same dollar result.

11 So, whilst Woolage should have been applied, or rather the principle therein, it is unnecessary to interfere with his Honour's verdict for the reasons I have given.

12 There remains the issue relating to future economic loss which, leaving aside the first three years, his Honour dealt with on the basis of allowing the remaining 18 years of the plaintiff's working life with a diminution of earning capacity in the order of approximately $500 per week which, with a 15% allowance for vicissitudes, produced a total loss of $229,536.

13 The thrust of the submission made on behalf of the appellant is that his Honour's assessment was an excessive one and the plaintiff must have had a capacity to earn more than $100 per week for those 18 years of the balance of his working life, conceding that a figure in the range of $300 to $400 per week might be more appropriate than his Honour's conclusion of around $500 per week.

14 Bearing in mind the evidence relating to the plaintiff and his Honour's conclusions concerning that, it is my opinion that his Honour's conclusion of $500 per week was one which was open.

15 In relation to this issue there has been some criticism of a statement in his Honour's reasons concerning rehabilitation provided by the appellant and a statement that his Honour's view was that the defendant had gone through the motions of rehabilitation with little realistic commitment to retraining the plaintiff. That finding is challenged and we have been taken to some of the relevant evidence.

16 Whether or not it was a finding that was completely open to his Honour may be a matter of some argument. On one view of the evidence it may have been open. On another, it may arguably have not been open but, in any event, even assuming that it was an erroneous finding, the evidence is such that the bottom line which his Honour came to for future economic loss was itself open on the evidence.

17 That being so, apart from the application of the slip rule to amend the verdict in the manner that I have hitherto indicated, I would propose that the appeal be dismissed with costs.

18 BEAZLEY JA: I agree.

19 YOUNG CJ IN EQ: I also agree.

20 BEAZLEY JA: The orders of the Court are those proposed by Stein JA.

21 FOR JUDGMENT ON COSTS SEE SEPARATE TRANSCRIPT.

LAST UPDATED: 18/02/2002