Concrite Pty. Limited v Rogerson - [2003] NSWCA 306

CITATION: Concrite Pty. Limited v. Rogerson [2003] NSWCA 306

HEARING DATE(S): 9 October 2003

JUDGMENT DATE:
9 October 2003

JUDGMENT OF: Hodgson JA at 1; Tobias JA at 41; Foster AJA at 42

DECISION: 1. Appeal allowed. 2. Orders of primary judge set aside. 3.Order that there be a new trial limited to damages. 4. Respondent to pay appellant's costs of appeal and to have a Suitors' Fund certificate if otherwise entitled. 5. Costs of the first two trials to be in the discretion of the judge hearing the new trial.

CATCHWORDS: WORKERS' COMPENSATION - Modified common law action for damages - Assessment of non-economic loss - Threshold for award of economic loss - An irrelevant consideration.

LEGISLATION CITED: Workers Compensation Act 1987 ss.151G, 151H

CASES CITED: Dell v. Dalton (1991) 23 NSWLR 528
Southgate v. Waterford (1990) 21 NSWLR 427
State Bank of NSW v White (1995) 36 NSWLR 622

PARTIES :
Concrite Pty. Limited - appellant
Bruce Rogerson - respondent

FILE NUMBER(S): CA 40166/03

COUNSEL: Mr. J.D. Hislop QC with Mr. N.E. Chen for appellant
Mr. D.T. Kennedy SC with Mr. D. Andrews for respondent

SOLICITORS: Sparke Helmore, Sydney for appellant
Rishworth Dodd & Co., Sydney for respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4578/00

LOWER COURT
JUDICIAL OFFICER : Karpin DCJ

CA 40166/03
DC 4578/00

HODGSON JA
TOBIAS JA
FOSTER AJA
Thursday 9 October 2003

CONCRITE PTY. LIMITED V. ROGERSON

Judgment

1 HODGSON JA: On 7 March 2003 Judge Karpin gave a verdict and a judgment for the respondent, in proceedings brought by him against the appellant, in the sum of $349,461.43. The appellant appeals to this Court from that decision.

2 This is not the first time the case has come to this Court. On 26 November 2001 another District Court Judge had given a verdict and judgment for the respondent in the sum of about $326,000.00, and an appeal to this Court from that decision was upheld on 18 September 2002 (cf. [2002] NSWCA 310). On that occasion the Court ordered a new trial limited to the quantum of damages, and that new trial gave rise to the decision against which the present appeal is brought.

3 I will outline the circumstances giving rise to the proceedings.

4 As at 13 August 1998, the respondent was employed by the appellant as a concrete truck driver. On that day he lost his footing when cleaning a chute on the rear of a truck and he fell, landing on his back on a pile of reinforcing mesh. This gave rise to pain in his back and neck and a tingling sensation in one leg.

5 He consulted medical practitioners and was off work until 31 August 1998. On that day he returned to work, and he remained in employment without further time off until March 1999.

6 In March 1999 he voluntarily resigned in order to travel to northern Australia. He had intended to find employment there, but in March 2000 he returned…

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 Concrite Pty. Limited v Rogerson

Details

AGLC: Concrite Pty. Limited v Rogerson [2003] NSWCA 306
Case: [2003] NSWCA 306
Decision Date: 9 October 2003

CaseChat Overview and Summary

Concrite Pty. Limited appealed to the New South Wales Court of Appeal against a decision of the primary judge concerning a modified common law action for damages brought by Mr. Rogerson. The dispute centred on the assessment of non-economic loss and the threshold for an award of economic loss.

The Court of Appeal was required to determine whether the primary judge had erred in considering the threshold for an award of economic loss when assessing non-economic loss. Specifically, the court had to consider the correct approach to assessing damages in a modified common law action for workers' compensation.

The Court of Appeal held that the threshold for an award of economic loss was an irrelevant consideration when assessing non-economic loss. The court reasoned that these were distinct heads of damage and should be assessed independently. The principles applied were those governing the assessment of damages in tort, particularly in the context of statutory modifications to common law rights.

Consequently, the Court of Appeal allowed the appeal, set aside the orders of the primary judge, and ordered a new trial limited to the assessment of damages. The respondent was ordered to pay the appellant's costs of the appeal, with a Suitors' Fund certificate available if otherwise entitled. The costs of the first two trials were left to the discretion of the judge presiding over the new trial.

Orders

Orders of the court

1. Appeal allowed. 2. Orders of primary judge set aside. 3.Order that there be a new trial limited to damages. 4. Respondent to pay appellant's costs of appeal and to have a Suitors' Fund certificate if otherwise entitled. 5. Costs of the first two trials to be in the discretion of the judge hearing the new trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Concrite Pty. Limited v. Rogerson [2003] NSWCA 306
HEARING DATE(S):	9 October 2003
JUDGMENT DATE:	9 October 2003
JUDGMENT OF:	Hodgson JA at 1; Tobias JA at 41; Foster AJA at 42
DECISION:	1. Appeal allowed. 2. Orders of primary judge set aside. 3.Order that there be a new trial limited to damages. 4. Respondent to pay appellant's costs of appeal and to have a Suitors' Fund certificate if otherwise entitled. 5. Costs of the first two trials to be in the discretion of the judge hearing the new trial.
CATCHWORDS:	WORKERS' COMPENSATION - Modified common law action for damages - Assessment of non-economic loss - Threshold for award of economic loss - An irrelevant consideration.
LEGISLATION CITED:	Workers Compensation Act 1987 ss.151G, 151H
CASES CITED:	Dell v. Dalton (1991) 23 NSWLR 528 Southgate v. Waterford (1990) 21 NSWLR 427 State Bank of NSW v White (1995) 36 NSWLR 622
PARTIES :	Concrite Pty. Limited - appellant Bruce Rogerson - respondent
FILE NUMBER(S):	CA 40166/03
COUNSEL:	Mr. J.D. Hislop QC with Mr. N.E. Chen for appellant Mr. D.T. Kennedy SC with Mr. D. Andrews for respondent
SOLICITORS:	Sparke Helmore, Sydney for appellant Rishworth Dodd & Co., Sydney for respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4578/00
LOWER COURT JUDICIAL OFFICER :	Karpin DCJ