CSR Limited v Clydesdale

CITATION:	CSR Limited v. Clydesdale [2003] NSWCA 339
HEARING DATE(S):	10 October 2003
JUDGMENT DATE:	21 November 2003
JUDGMENT OF:	Meagher JA at 1; Hodgson JA at 2; Foster AJA at 72
DECISION:	1. Appeal allowed to the extent of substituting for the amount awarded to the respondent, judgment in the sum of $972,740.70. 2. Respondent to pay appellant's costs of the appeal, and to have a certificate under the Suitors' Fund Act if otherwise eligible.
CATCHWORDS:	WORKERS COMPENSATION - Common law liability of employer - Damages - Appeal - Whether error of fact vitiated primary judge's conclusion as to causation of damages - Whether error affected particular heads of damages - Domestic assistance - Allowance for fair give and take of family life - Whether limitations in s.151K of Workers Compensation Act 1987 apply in respect of future care.
LEGISLATION CITED:	Workers Compensation Act 1987 s.151K
CASES CITED:	Jones v. Dunkel (1959) 101 CLR 298 Malec v. J.C. Hutton Pty. Ltd. (1990) 169 CLR 638 Roads & Traffic Authority of NSW v. Lolomanaia (2001) 34 MVR 249 Suttor v. Gundowda Pty. Ltd. (1950) 81 CLR 418
PARTIES :	CSR Limited - appellant Kim Clydesdale - respondent
FILE NUMBER(S):	CA 41006/02
COUNSEL:	Mr. J.D. Hislop QC with Mr. G. Seib for appellant Mr. P. Hennessy SC with Ms. M. Kumar for respondent
SOLICITORS:	Johnstone Robinson Legal, Sydney for appellant Farrell Lusher, Wagga Wagga for respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 52/01
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

CA 41006/02
DC 52/01

MEAGHER JA
HODGSON JA
FOSTER AJA

Friday 21 November 2003

CSR LIMITED V. CLYDESDALE

Judgment

1 MEAGHER JA: I agree with Hodgson JA

2 HODGSON JA: On 16 October 2002 in proceedings brought by the respondent against the appellant, Goldring DCJ gave a verdict for the respondent in the sum of $1,367,397.92. The appellant appeals to this Court from that decision.

3 The respondent is a married woman born 11 July 1967. Between March 1998 and July 1999, she was employed by the appellant as a labourer in its planer mill at Tumut. In these proceedings, the respondent claimed that she was required to perform heavy and repetitive tasks in handling timber at the appellant’s mill, that the appellant breached its duty to provide her with a safe system of work, and that as a result the respondent suffered injury, particularly to her back. Those claims were accepted by the primary judge. The respondent has not worked since July 1999, and the primary judge found that this was entirely due to her injury caused by the appellant.

4 The primary judge assessed damages as follows:

(1) Non-economic loss under s.151G of the Workers Compensation Act 1987, as applicable to this case: two-thirds of a most extreme case, 66.67% x $236,450.00 = $157,641.22.
(2) Past earnings lost: early July 1999 to trial, at average earnings over last three months of employment, $104,878.00.
(3) Loss of future earning capacity: discounted value of her average earnings until…