Danby v BBC Hardware

[2001] NSWCA 89

CITATION:	Danby v BBC Hardware [2001] NSWCA 89
FILE NUMBER(S):	CA 40061/00
HEARING DATE(S):	5 April 2001
JUDGMENT DATE:	5 April 2001
PARTIES :	John Danby v BBC Hardware Limited
JUDGMENT OF:	Handley JA at 1; Davies AJA at 27

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 6527/98
LOWER COURT JUDICIAL OFFICER :	Twigg DCJ QC

COUNSEL:	Appellant - S Norton Respondent - P Morris
SOLICITORS:	Appellant - J D Hancock, Marrickville Respondent - Blake Dawson Waldron
CATCHWORDS:	NEGLIGENCE - damages - no question of principle
LEGISLATION CITED:	Workers Compensation Act 1987 (NSW)
CASES CITED:	Fox v Wood (1981) 148 CLR 438
DECISION:	Appeal allowed - orders made

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40061/00
DC 6527/98

HANDLEY JA

DAVIES AJA

5 April 2001

JOHN DANBY v BBC HARDWARE LIMITED

JUDGMENT

1    HANDLEY JA: This is an appeal by a plaintiff from the judgment of Twigg DCJ QC which was pronounced orally on 21 January 2000 with written reasons delivered on 24 January.

2 The plaintiff ’s claim arose out of an industrial accident at the Thornleigh store of the defendant on 24 October 1997. The Judge found a verdict for the plaintiff and assessed his damages at $151,693. Judgment was entered for $126,581 offsetting past out-of-pockets and past wage loss against the amounts which the plaintiff had to repay the defendant under s 151B of the Workers Compensation Act.

3    The course adopted by the Judge in this respect was irregular and will require the form of the judgment to be adjusted. This will not change the effective recovery of the plaintiff.

4 The Judge allowed $79,327 for non-economic loss based on 35 per cent of a worst possible case, future wage loss of $20,000 by way of a cushion, and future out-of-pocket expenses of $20,000, $10,000 of which was for future surgery. He also allowed interest on the past component of the non-economic loss which was contrary to s 151M of the Workers Compensation Act and this error has been conceded by counsel for the appellant. He also allowed a Fox v Wood component of $2,296 and the other amounts that I have already mentioned.

5    The plaintiff has appealed, challenging the amount for non-economic loss, the amount for future wage loss, and has submitted that an allowance ought to be made for loss of future superannuation.

6    The respondent sought leave at the hearing to file a notice of cross-appeal to raise the questions of the interest awarded by the Judge on non-economic loss, the Fox v Wood allowance and alleged over-compensation for future medical expenses. The substantial points raised by the notice of cross-appeal had been dealt with in the respondent’s written submissions and the Court granted leave for a notice of cross-appeal to be filed, although strictly it was a notice of contention since the respondent did not seek a variation in its favour of the judgment entered below.

7    The Court indicated during argument…