Astaas Pty Ltd v Verdesoto

[2002] VSCA 30

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 5232 of 2000

ASTAAS PTY LTD
	Appellant
v.
JOHN VERDESOTO	Respondent

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JUDGES:	ORMISTON, PHILLIPS and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 March 2002
DATE OF JUDGMENT:	12 March 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 30

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PERSONAL INJURIES – Damages – Calculation of past pecuniary loss seriously miscarried – Impact on the amount awarded for future pecuniary loss – Re-trial on the issue of damages.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.H.L.Forrest, Q.C., Mr M. Morrison and Mr D.J. Batt	Lander and Rogers
For the Respondent	Mr A.W. Adams, Q.C. and Mr P.G. Misso	Petersons

ORMISTON, J.A.: 

1. I will ask Vincent, J.A. to deliver the first judgment.

VINCENT, J.A.: 

1. In March 1993, the respondent, who had been employed by the appellant as an aircraft metal-worker at Avalon Airfield, sustained an injury to his back.  He was at the time engaged in work inside the fuel tank of a Boeing 747 aeroplane.  Entry to the tank was effected through a small aperture through which he was required to pass head first and face down.  Egress was achieved feet first and with his body arched back as he endeavoured to reach the support of an external mobile platform.  Within a relatively short period of undergoing such stress, he began to experience significant back pain.  He ceased work on 10 March 1993 in consequence and took sick leave a short time later.  In April 1993, and whilst he was still on sick leave he was retrenched, along with other employees of the appellant.

1. In due course, the respondent made a claim for damages in the County Court.  The proceeding came on for trial before a judge sitting alone at Geelong on 22 March 2000.  After the completion of the evidence on 23 March, and pursuant to a direction of the judge, the parties filed written submissions.  On 18 April 2000, the parties were called before his Honour for the matter of past economic loss to be canvassed.

1. The judge handed down judgment on 19 April 2000, awarding the respondent the sum of $510,000.  This, it appeared, represented an assessment of damages in the sum of $529,000 less an amount of $19,000 that had been paid to the respondent pursuant to the Accident Compensation Act 1985. The assessment comprised $65,000 as damages for pain and suffering and loss of enjoyment of life, $264,000 as damages for past pecuniary loss and $200,000 as damages for loss of future earning capacity. There was a consequential order for costs against the appellant and an order that the appellant pay interest in the sum of $35,000.

1. The appellant now seeks to have the judgment set aside in respect of the award of damages and the amount of interest ordered.  No complaint is made concerning the determination of the issue of liability or that aspect of the award which related to pain and suffering and loss of enjoyment of life.  However, in the event that the Court determined that the question of damages should be re-visited, it would encompass the whole of the damages awarded.

1. The notice of appeal contains a number of grounds and two further grounds were added on application at the commencement of the hearing today.  In the event, it became clear during the course of discussion this morning that the calculation of pecuniary loss for the past had seriously miscarried, and that there were consequential impacts upon the amount awarded in respect of pecuniary loss for the future.  In particular, I should mention as an example that a figure of $720 net per week was set as the basis for the calculations.  This, counsel for the respondent has conceded before us, "could in no way be supported.  In the circumstances, it is necessary for the matter to be returned to the court below for a retrial of the issue of damages."  I would allow this appeal, set aside the judgment and orders given on 19 April 2000 and order a new trial on the issue of damages.

ORMISTON, J.A.: 

1. I agree.

PHILLIPS, J.A.: 

1. I also agree.

ORMISTON, J.A.: 

1. The orders the Court makes are as follows:

1.        That the appeal be allowed.

2.That the judgment and orders made and given in the County Court on 19 April 2000 be set aside and that it be further ordered and directed that there be a new trial limited to the issue of damages only.

3.It is ordered that the respondent pay the costs of the appeal and that the costs of the proceeding be at the discretion of the trial judge.

A certificate under the Appeal Costs Act is granted.

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