Cassandra Ann Andrikis v Nominal Defendant

[2005] ACTCA 11

CASSANDRA ANN ANDRIKIS v NOMINAL DEFENDANT [2005] ACTCA 11 (14 FEBRUARY 2005)

EX TEMPORE JUDGMENT

Disability Services Act 1986 (Cth), s 22, s 23

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 23-2004
No. SC 526 of 2001

Judges:  Crispin P, Connolly and Allsop JJ
Court of Appeal of the Australian Capital Territory
Date:  14 February 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA 23-2004
  )  No. SC 526 of 2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CASSANDRA ANN ANDRIKIS

Appellant

AND: NOMINAL DEFENDANT

Respondent

ORDER

Judges:  Crispin P, Connolly and Allsop JJ
Date:  14 February 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. the appeal be allowed; 

1. the judgment delivered on 10 February 2004 and affirmed on 11 June 2004 in favour of the appellant be amended by the addition of the sum of $10,271.14 thereby increasing the judgment sum to the amount of $110,649.77; 

1. the order for costs made against the appellant in favour of the respondent on 11 June 2004 in relation to the application to correct the judgment be set aside; 

1. in lieu thereof, each party bear their own costs; 

1. the respondent pay the appellant’s costs of this appeal.

IN THE SUPREME COURT OF THE  )   No. ACTCA 23-2004
  )  No. SC 526 of 2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CASSANDRA ANN ANDRIKIS

Appellant

AND: NOMINAL DEFENDANT

Respondent

Judges:  Crispin P, Connolly and Allsop JJ
Date:  14 February 2005
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. The appellant appeals against the inadequacy of damages awarded to her in respect of personal injuries which she sustained from a motor vehicle collision on 3 May 2000.  Liability was found against the nominal defendant in relation to those injuries and the Master proceeded to assess damages.

1. The appeal has a narrow compass and the submissions of counsel have been confined to the claim for the sum of $10,271.14 which had been incurred for rehabilitation services provided to the appellant.

1. The Master declined to include that sum as part of the damages awarded and a subsequent application was made pursuant to the slip rule to have the judgment amended so that that sum could be included.  The Master, however, rejected the application, finding that the amount payable to the Commonwealth Rehabilitation Service for the provision of those services should not be included because the respondent had been under no obligation to include the amount in the sum to be repaid to the Workers’ Compensation Insurer, and under no separate obligation to pay the sum in question.

1. It is common ground that the Master’s attention was not drawn to the relevant provisions of the Disability Services Act 1986 (Cth):

· Section 22(2) of that Act provides that subject to certain irrelevant exceptions, the cost of and incidental to the rehabilitation program provided to a person shall be borne by that person;

· Section 23(2) provides that a person who has undertaken a rehabilitation program and recovers compensation is liable to pay to the Commonwealth an amount equal to the cost of the rehabilitation program;

· Section 23(12) provides for recovery against the person who has undertaken the rehabilitation program or the person liable to pay compensation on behalf of that person;

· Section 23(13) provides that a person liable to pay compensation includes reference to an insurer, under a contract of insurance, liable to indemnify the person liable to pay the compensation against such liability.

1. In the light of these provisions, it has now been conceded that the appeal cannot be resisted and that the Master had fallen into error by failing to include the sum of $10,271.14.  The only issues we are obliged to determine relate to the cost of the proceedings before the Master pursuant to the slip rule and also the costs of this appeal.

1. Since neither party drew the Master’s attention to the statutory provisions to which I have referred, I take the view that it is appropriate that each party pay their own costs of the application under the slip rule.

1. On the other hand, the issue was fairly raised by the appellant in the notice of appeal and, indeed, in an amended notice of appeal filed well before the appeal was set down for hearing.  In these circumstances it is, in my opinion, entirely appropriate that the respondent pay the appellant’s costs of the appeal.

1. Accordingly, the orders that I would propose are that the appeal be allowed and the judgment in favour of the appellant be amended by the addition of the sum of $10,271.14 thereby increasing the judgment sum to $110,649.77.  I would order that each party pay their own costs of the slip rule application and that the respondent pay the costs of the appeal.

   I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date: 30 March 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA 23-2004
  )  No. SC 526 of 2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CASSANDRA ANN ANDRIKIS

Appellant

AND: NOMINAL DEFENDANT

Respondent

Judges:  Crispin P, Connolly and Allsop JJ
Date:  14 February 2005
Place:  Canberra

REASONS FOR JUDGMENT

CONNOLLY J:

1. I would agree with those orders and the reasons given by the President.

   I certify that the preceding paragraph numbered (9) is a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date: 30 March 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA 23-2004
  )  No. SC 526 of 2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CASSANDRA ANN ANDRIKIS

Appellant

AND: NOMINAL DEFENDANT

Respondent

Judges:  Crispin P, Connolly and Allsop JJ
Date:  14 February 2005
Place:  Canberra

REASONS FOR JUDGMENT

ALLSOP J:

1. I also would agree with those proposed orders and with the reasons given by the learned President.

   I certify that the preceding paragraph numbered ten (10) is a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date: 30 March 2005

Counsel for the Appellant:  Mr G Stretton
Solicitor for the Appellant:  Bradley Allen
Counsel for the Respondent:  Mr M McDonogh 
Solicitor for the Respondent:  Phillips Fox
Date of hearing:  14 February 2005
Date of judgment:  14 February 2005