Crystal Wall Pty Ltd v Pham

[2005] NSWCA 449

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Crystal Wall Pty Limited v Pham [2005]  NSWCA 449

FILE NUMBER(S):
40211/05

HEARING DATE(S):               4 November 2005

JUDGMENT DATE: 15/12/2005

PARTIES:
Crystal Wall Pty Limited (Appellant)
Van Chanh Pham (Respondent)

JUDGMENT OF:       Handley JA Santow JA McColl JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 11645/01

LOWER COURT JUDICIAL OFFICER:     Acting Judge Murray QC

COUNSEL:
M J Neil QC/ R B Page (Appellant)
B R Ferrari (Respondent)

SOLICITORS:
Moroney-Betts (Appellant)
John D Hancock (Respondent)

CATCHWORDS:
NEGLIGENCE – Employee injured whilst engaging in lifting activities – inconsistent accounts of how employee injured – whether finding that employer breached its duty of care open on the evidence – HELD - open to primary judge to find for the respondent if, on the whole of the evidence, he could reasonably infer the accident was due to the employer’s negligence - DAMAGES – employee suffered muscular ligamentous strains and aggravation of pre-existing degenerative changes in low back – Workers Compensation Act 1987 – modified common law damages – whether employee’s injuries constituted 30% of a most extreme case – HELD – assessment of 30% so unreasonable as to warrant appellant intervention – assessment of 20% substituted (D)

LEGISLATION CITED:
Workers Compensation Act 1987
Workers Compensation Legislation Amendment Act 2001
Suitors’ Fund Act 1951

DECISION:
(1) Appeal allowed.
(2) Judgment in favour of the respondent insofar as it ordered the appellant to pay the respondent $233,391.00 set aside and in lieu thereof order the appellant to pay the respondent $23,000.00.
(3) Respondent to pay 50% of the appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 if qualified.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA         40211/05
DC         11645/01

HANDLEY JA
SANTOW JA
McCOLL JA

Thursday, 15 December 2005

CRYSTAL WALL PTY LIMITED v Van Chanh PHAM

Judgment

1. HANDLEY JA:     I agree with McColl JA.

2. SANTOW JA:      I agree with McColl JA both as to liability and, regrettably, as to damages.  Her judgment explains with clarity why those consequences must follow.  I would wish however to add this. 

3. This appeal illustrates an anomaly in the changes introduced by the modified common law regime in Part 5 of the Workers Compensation Act 1987 (“the Act”). It is one which leads to harsh and probably unanticipated results in cases like this.

4. The Act here renders a 10% difference (between 20% of a most extreme case and 30%) the cause of an enormous reduction in damages from $233,391 to $23,000.  It does so to a plaintiff who, by reason of lack of English and a bad stutter is now essentially unemployable.  Such a person would be most unlikely ever to find light duties given those disabilities.  And heavy duties are now impossible, by reason of his work injury. 

5. Thus, though suffering a significant back injury he cannot recover at all for economic loss from that injury; that is the effect of the modified regime.  There…