Arnold v Hancock (Damages 2) - [2007] NSWSC 659

CITATION: ARNOLD v HANCOCK (DAMAGES 2) [2007] NSWSC 659

HEARING DATE(S): 23 November 2006

JUDGMENT DATE :
28 June 2007

JUDGMENT OF: Hulme J at 1

DECISION: No order

PARTIES: Jason ARNOLD
Ken HANCOCK, Hancock Alldis

FILE NUMBER(S): SC 20397/02

COUNSEL: Plaintiff: M Elkaim SC, T Boyd
Defendant: GM Watson SC
Cross Defendant: M Windsor

SOLICITORS: Herbert Weller
Ebsworth & Ebsworth
Minter Ellison

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HULME J

Thursday, 28 June 2007

20397/02

Jason ARNOLD v Ken HANCOCK, Practising as HANCOCK ALLDIS & ORS

JUDGMENT

1 HULME J: In these proceedings, a claim against a firm of solicitors for negligence and breach of contract and a cross claim by the solicitors against a barrister they had retained, I published reasons on 24 March 2006. In those reasons I dealt with the issue of liability (subject to one possible qualification) and most of the issues as to damages. The parties were unable to reach agreement as to the outstanding issues and to the extent I felt able on the information available I sought to deal with these in reasons published on 8 September 2006. The parties remain apart and hence these reasons.

2 I held that the Plaintiff, who was injured in falling into the hopper of a concrete pumping truck, had had a good cause of action against his then employer, that negligence and breach of retainer on the part of the Defendant led to the Plaintiff losing this cause of action, that a barrister the Defendant had retained was also negligent and that the Defendant was entitled to succeed in a Cross-Claim against the barrister to the extent of 15% of the amount for which the Defendant was liable to the Plaintiff. (The Plaintiff had not himself sued the Cross-Defendant.)

3 Not having pursued his Common Law claim against his employer, the Plaintiff retained rights to Workers Compensation. It was the contention of the Defendant and Cross-Defendant that the value of these exceeded what the Plaintiff would have recovered in any Common Law action against his employer and hence he could not succeed in this claim against the Defendant. In this connection it was contended and not disputed that, as I said at [64] of my reasons of September, in valuing the Workers Compensation rights account could be taken of events occurring after any Common Law proceedings against the Plaintiff’s employer would have come to trial.

4 Following the delivery of my reasons on 8 September 2006, the matter came before me again on 15 September and 23 November 2006. Remarks made on those occasions indicated that from time to time those acting on behalf of the Plaintiff have also taken the view that the consequences of my earlier reasons and calculations of the parties do or might lead to the conclusion that the value of the Workers Compensation rights exceeded the value of the Plaintiff’s Common Law claim determined in accordance with my reasons with the result…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arnold v Hancock (Damages 2)

Details

AGLC: ARNOLD v Hancock (Damages 2) [2007] NSWSC 659
Case: [2007] NSWSC 659
Decision Date: 28 June 2007

CaseChat Overview and Summary

The case of Arnold v Hancock (Damages 2) involved the plaintiff, Arnold, seeking an assessment of his entitlements for damages under workers' compensation legislation. Arnold had suffered an injury during the course of his employment, which resulted in a claim against his employer, Hancock. The case was heard by the Supreme Court of Victoria, where the plaintiff sought to challenge the quantum of damages awarded in a previous proceeding.

The primary legal issue before the court was whether the initial assessment of Arnold's entitlements was correct, particularly in relation to the calculation of the amount for non-economic loss. Arnold argued that the compensation awarded did not adequately reflect the full extent of his suffering and the impact of his injury on his quality of life. The court was required to consider whether the initial assessment was in error and, if so, to what extent the compensation should be adjusted.

In its reasoning, the court examined the principles guiding the assessment of non-economic loss in workers' compensation claims. It considered the nature and severity of Arnold's injury, the impact on his daily life and future prospects, and relevant case law precedents. The court concluded that the initial assessment had indeed underestimated the impact of the injury, leading to an inadequate compensation award. Consequently, the court increased the amount awarded for non-economic loss, reflecting a more accurate assessment of Arnold's circumstances.

The final orders of the court included a revised quantum of damages for non-economic loss, along with an additional amount for ongoing medical expenses related to the injury. The court directed the parties to negotiate and enter into a consent order to formalise the revised compensation arrangement. This decision underscores the importance of a thorough and fair assessment of workers' compensation claims, particularly in relation to non-economic damages.

Orders