Ferreira v Zebra Stoneworks Pty Limited - [2002] NSWCA 405

NEW SOUTH WALES COURT OF APPEAL

CITATION: Ferreira v. Zebra Stoneworks Pty. Limited [2002] NSWCA 405

FILE NUMBER(S):
40969/01

HEARING DATE(S): 30 August 2002

JUDGMENT DATE: 17/12/2002

PARTIES:
Manuel Ferreira - appellant
Zebra Stoneworks Pty. Limited - respondent

JUDGMENT OF: Hodgson JA Santow JA Gzell J

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): CLD20254/00

LOWER COURT JUDICIAL OFFICER: James J

COUNSEL:
The appellant was unrepresented
Mr. A. Bridge SC with Mr. A. Jungwirth for respondent

SOLICITORS:
The appellant was unrepresented
William K. Chambers, Sydney for respondent

CATCHWORDS:
ESTOPPEL - Issue estoppel - Award under Workers Compensation Act on basis of total incapacity for periodic payments of statutory maximum amount - Common law damages against employer - Whether employer bound by issue estoppel as to a minimum figure for past economic loss.

LEGISLATION CITED:
Workers Compensation Act 1987, ss.35, 36, 37, 42, 43, 151B, 151I

DECISION:
1. Appeal allowed to the extent of increasing the judgment by a figure of $6,795.84, but otherwise dismissed.
2. Each party to bear its own costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40969/01
CLD 20254/00
HODGSON JA
SANTOW JA
GZELL J
Tuesday 17 December 2002

FERREIRA V. ZEBRA STONEWORKS PTY. LIMITED

Judgment

HODGSON JA: On 9 November 2001, James J entered a verdict of $434,189.26 for the appellant Manuel Ferreira in proceedings against the respondent Zebra Stoneworks Pty. Limited. After taking into account workers compensation payments and medical expenses of $118,082.00 paid by the respondent, the primary judge entered judgment for the appellant for $316,107.26. He ordered the respondent to pay one-half of the appellant’s costs. The appellant appeals to this Court from that assessment of damages.
CIRCUMSTANCES
The appellant was born in Portugal on 9 March 1952. He left school at the age of 13, started work as a stonemason’s apprentice, and after about five years was regarded as a qualified stonemason. For about three years in the 1970s, he served in the Portuguese army, obtaining the rank of sergeant. He married in 1978, and he and his wife have four children born between 1980 and 1989.
In 1989, he migrated to Australia, sponsored by a company called Mellocco, and he worked for that company as a stonemason for about seventeen months. This employment was then terminated, because of the recession at that time. He then worked for about a year for Traditional Stone Constructions, being paid $13.00 per hour. In October 1991, he commenced working for Volparto Pty. Limited at the rate of $35.00 per hour; but some time later Volparto became insolvent.
In about 1993, he obtained a certificate as a tiler, and he did some work as a tiler. Volparto resumed business, and between 1994 and the accident on 22 July 1997 the appellant worked for Volparto at the hourly rate of $35.00, although he did not have enough work from Volparto to keep him fully employed. Some months before the accident, the appellant agreed to work for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWCA 405
Decision Date: 17 December 2002

CaseChat Overview and Summary

In *Ferreira v Zebra Stoneworks Pty Limited*, the appellant brought a claim for damages against the respondent in the Supreme Court. The respondent conceded liability, and the case proceeded to an assessment of damages. The primary judge made findings regarding the appellant's injuries, including a significant soft tissue injury that resolved relatively quickly, but also an aggravation and acceleration of pre-existing spinal conditions, leading to permanent pain. The primary judge also found some loss of sexual function and an adjustment disorder with depressed mood.

The legal issues before the court concerned the assessment of damages, specifically non-economic loss, future out-of-pocket expenses, and economic loss, including past loss of earning capacity and superannuation. A key point of contention was whether the respondent was bound by a previous Workers Compensation Court award, which had determined the appellant to be totally incapacitated for periodic payments at the statutory maximum, to preclude the respondent from arguing a residual earning capacity in the past for the purposes of the common law damages claim.

The primary judge assessed non-economic loss at 55% of the maximum amount, future out-of-pocket expenses at $4,169.00, and past economic loss based on the appellant's actual earnings of $350.00 per week after tax. The respondent conceded that, due to the absence of a variation application to the Compensation Court award, it was precluded from arguing that the appellant had any residual earning capacity in the past. Consequently, the primary judge assessed past loss of earning capacity at $75,250.00 and past loss of superannuation at $6,772.00.

The appeal resulted in an increase to the judgment by $6,795.84, with the remainder of the appeal being dismissed. Each party was ordered to bear its own costs.

Orders

Orders of the court

1. Appeal allowed to the extent of increasing the judgment by a figure of $6,795.84, but otherwise dismissed.

2. Each party to bear its own costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the Supreme Court, the appellant sued the respondent and Mr. Bustamante. Prior to the hearing Mr. Bustamante died, and the action against him was not pursued. Ultimately the respondent conceded liability, and the case against the respondent was determined as one involving the assessment of damages.DECISION OF PRIMARY JUDGE The parties agreed on out-of-pocket expenses at $18,514.96, and the Fox v. Wood component at $18,257.70. The primary judge found that the appellant suffered a significant soft tissue injury, which resolved within a fairly short time; but that pre-existing congenital or degenerative conditions of the appellant’s spine, which prior to the accident had been asymptomatic, were aggravated and accelerated and made symptomatic. In the result, he held that the appellant had suffered and will continue permanently to suffer pain in various parts of his body, including his back, neck, shoulder and legs. Although the primary judge thought his complaints of pain were to some extent exaggerated, he held that the appellant had suffered loss of enjoyment of life. The primary judge was not satisfied that the appellant had suffered any injury to his head or brain, stating that there was “no acceptable evidence that any part of the marble slab stuck [the appellant] on the head”. He found there was some loss of sexual function; and accepted the evidence of Dr. Phillips that the appellant was suffering from an adjustment disorder with depressed mood. The primary judge found non-economic loss as 55% of the maximum amount, that is $122,347.00. He assessed future out-of-pocket expenses as $4,169.00. As regards economic loss, the primary judge treated the pre-existing condition of the appellant’s spine as going only to the appropriate discount for contingencies. He noted that the appellant’s income tax return for the year ended 30 June 1996 showed a taxable income of $21,993.00, and that for the year ended 30 June 1997 showed a taxable income of $17,651.00. He noted the respondent’s submission that this indicated earnings of around $350.00 per week after tax. He noted the submission of the appellant that compensation was for loss of earning capacity (Medlin v. The State Government Insurance Commission (1995) 182 CLR 1, Husher v. Husher (1999) 197 CLR 138); and that the appellant’s earnings of $35.00 per hour translated to $1,400.00 per week gross, $1,200.00 per week after deducting work expenses, or $800.00 after tax. Alternatively, it was submitted for the appellant that some figure of average weekly earnings should be adopted. The primary judge accepted that compensation was for loss of earning capacity, but held that what the appellant was actually earning was the best measure of this; and accordingly he adopted $350.00 per week. The respondent conceded that, because there had been no attempt to vary the Compensation Court award, it was precluded from submitting that the appellant had any residual earning capacity in the past; and in the result, the primary judge assessed past loss of earning capacity at 215 x $350 = $75,250.00 ; and past loss of superannuation at 215 x $450 x 7% = $6,772.00.

Ratio Decidendi

Legal Principle Established

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