DM and BP Wiskich Pty Ltd v Boral Bricks Pty Ltd

[2012] NSWDC 145

District Court

New South Wales

Medium Neutral Citation:

DM & BP Wiskich Pty Ltd v Boral Bricks Pty Ltd [2012] NSWDC 145

Hearing dates:

23, 24, 26, 27/04/2012 & 18/06/2012

Decision date:

13 September 2012

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

See Paragraph [10] for orders

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - negligence - subrogated claim by employer against tort feasor for recovery of workers' compensation payments made to employee pursuant to s 151Z(1)(d) of Workers' Compensation Act 1987

Legislation Cited:

Civil Procedure Act 2005, s 100
Workers' Compensation Act 1987, s 151Z(1)(d)
UCPR, r 6.12(18)

Cases Cited:

Cosmidis v Boral Bricks Pty Ltd [2012] NSWDC 144

Category:

Principal judgment

Parties:

DM & BP Wiskich Pty Ltd (Plaintiff)
Boral Bricks Pty Ltd (Defendant)

Representation:

Mr DS Stanton (Plaintiff)
Mr N Polin (Defendant)
Sparke Helmore (Plaintiff)
Davidson Legal (Defendant)

File Number(s):

2010/233111

Publication restriction:

None

Judgment

Nature of case

1. In these proceedings numbered 2010/233111, the plaintiff, DM & BP Wiskich Pty Ltd ["Wiskich"], claims damages from the first defendant, Boral Bricks Pty Limited ["Boral"] pursuant to s 151Z(1)(d) of the Workers' Compensation Act 1987 seeking the recovery of payments of workers' compensation made to Orestis Cosmidis, an employee of Wiskich, in respect of injuries Mr Cosmidis received in a motor vehicle accident, involving a forklift, that occurred on 18 April 2008.

1. The injury occurred when Mr Cosmidis was walking on a roadway within industrial land situated at Martin Road, Badgerys Creek, when he was struck from behind by a forklift truck driven by an employee of Boral. At the time the premises were occupied by Boral. The forklift truck was owned by Boral.

Facts

1. Findings of fact on liability concerning the responsibility of Boral for the injuries sustained by Mr Cosmidis are the subject of a judgment in related proceedings 2011/80368 which were brought by Mr Cosmidis against Boral. Accordingly, the liability facts do not require reiteration in these reasons as the evidence in those primary proceedings brought by Mr Cosmidis was also taken to be evidence in these proceedings: Cosmidis v Boral Bricks Pty Ltd [2012] NSWDC 144, at [138] - [161], and there were no findings of contributory negligence on the part of Mr Cosmidis or any negligence on the part of the employer: [162] to [170]; [171] to [176].

1. The amount of the plaintiff's claim for recovery of workers' compensation payments to Mr Cosmidis, which is not disputed, is in the sum of $210,233 plus interest up until the time of judgment.

Interest

1. The plaintiff claims an entitlement to interest at 9 per cent on half the damages until the date of judgment: UCPR r 6.12(18). The period between 18 April 2008 and the date of judgment is 4.40 years.

1. Interest on $210,233 at 9 per cent over 4.40 years less 50 per cent yields the sum of $41,626.13, which I award the plaintiff as interest: s 100 of the Civil Procedure Act 2005.

1. The plaintiff is entitled to the award of interest as claimed.

Disposition and costs

1. Consequent upon the findings I have made in the related proceedings, as identified in paragraph [3] above, it follows that the plaintiff must succeed in these proceedings against Boral.

1. The cost orders made in the related proceedings should guide the cost orders to be made in these proceedings.

Orders

1. I make the following orders:

(1)  Verdict and judgment for the plaintiff DM & BP Wiskich Pty Ltd against the defendant, Boral Bricks Pty Limited, in the sum of $251,859.13 including interest to the date of judgment;

(2)  The defendant, Boral Bricks Pty Limited, is to pay the plaintiff's costs of the proceedings on the ordinary basis, unless otherwise ordered;

(3)  The exhibits may be returned;

(4)  Liberty to apply on 7 days notice if further orders are required;