Franco v Workers Compensation Nominal Insurer (No 2) - [2021] NSWSC 129

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Franco v Workers Compensation Nominal Insurer (No 2) [2021] NSWSC 129
Hearing dates: 3, 4 August 2020
Decision date: 22 February 2021
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   Judgment for the plaintiff against the defendant;
(2)   The defendant shall pay the plaintiff damages in the sum of $1,138,449.60;
(3) Pursuant to the terms of s 101 of the Civil Procedure Act 2005 (NSW), interest will be paid at the prescribed rate in accordance with the rules;
(4)   The defendant shall pay the plaintiff’s costs of and incidental to the proceedings;
(5)   Leave is granted to each party to address the Court on any calculation error; or misstatement of multiplier; any need to repay or to specify repayment of any sum; the form of the orders; and on any special or different order as to costs. Such application shall be made within 2 working days of the date of judgment, by email, accompanied by a short submission in writing, to the extent so advised, of no more than five pages, not including any evidentiary material relating to any offer that may or may not have been made and may be the subject a response within a further 3 working days by any party affected by any such application or submission;
(6)   Otherwise proceedings are dismissed.

Catchwords:
WORKERS COMPENSATION – common law damages – negligence of employer – contributory negligence – economic loss, past and future – damages awarded

Legislation Cited:
Corporations Act 2001 (Cth), s 601AG
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW), s 101
Workers Compensation Act1987 (NSW), ss 66, 151G, 151H, 151IA
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 294

Cases Cited:
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28
British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Council of the City of Greater Taree v Wells (2010) 174 LGERA 208; [2010] NSWCA 147
DIB Group Pty Ltd t/as Hill & Co v Cole (2009) Aust Torts Reports 82–022; [2009] NSWCA 210
Fox v Wood (1981) 148 CLR 438; [1981] HCA 41
Franco v Workers Compensation Nominal Insurer [2020] NSWSC 915
Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61
New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494; [1985] HCA 34
Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) Aust Torts Reports ¶81–949; [2008] NSWCA 99
Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559; [2008] NSWCA 217

Category: Principal judgment
Parties: Marina Franco (Plaintiff)
Workers Compensation Nominal Insurer (Defendant)
Representation:
Counsel:
R de Meyrick & J Mrsic (Plaintiff)
S Kettle (Defendant)
Solicitors:
Grieve Watson Kelly Lawyers (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s): 2019/210260

Judgment

HIS HONOUR: The plaintiff, Marina Franco, alleges that she was…

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: [2021] NSWSC 129
Decision Date: 22 February 2021

CaseChat Overview and Summary

Franco commenced proceedings against the Workers Compensation Nominal Insurer seeking compensation for injuries sustained in a workplace accident. The dispute involved claims for common law damages due to the employer's negligence and the issue of contributory negligence on the part of Franco. The case was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues centred on whether the employer was negligent and, if so, to what extent Franco's own negligence contributed to his injuries. Another key issue was the calculation of economic loss, both past and future, and the appropriate amount of damages to be awarded. The court needed to balance the principles of contributory negligence against the total economic loss suffered by Franco.

The court found that the employer was indeed negligent in failing to provide a safe working environment. However, it also determined that Franco was contributorially negligent, reducing his entitlement to damages. After assessing the economic loss suffered, the court awarded Franco a sum that reflected both his past economic losses and a reasonable estimate of his future economic loss, taking into account the contributory negligence. The court's decision provided a clear framework for calculating damages in similar cases involving both employer negligence and contributory negligence.

The final orders included a determination of the amount of damages payable to Franco, reflecting the court's findings on negligence and contributory negligence. The court directed the Workers Compensation Nominal Insurer to pay the awarded damages to Franco, effectively resolving the dispute.

Orders