Concrite Pty. Limited v Rogerson

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.