Franco v Workers Compensation Nominal Insurer (No 3) - [2021] NSWSC 503

Supreme Court

New South Wales

Medium Neutral Citation: Franco v Workers Compensation Nominal Insurer (No 3) [2021] NSWSC 503
Hearing dates: 3, 4 August 2020
Decision date: 10 May 2021
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Order 5 issued by the Court in these proceedings on 22 February 2021 is vacated;
(2) Pursuant to the provisions of s 100 of the Civil Procedure Act 2005 (NSW) and s 151M of the Workers Compensation Act 1997 (NSW), the defendant shall pay interest on the damages awarded on 22 February 2021 in the amount of $245,372.92.

Catchwords:
JUDGMENT and ORDERS – pre-judgment interest - Workers Compensation Act 1987 (NSW), s 151M – statutory pre-conditions – no reasonable offer in writing – pre-judgment interest ordered

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 100, 101
Workers Compensation Act 1987 (NSW), ss 151D, 151M
Workplace Injury Management and Workers
Compensation Act 1998 (NSW), ss 281, 282

Cases Cited:
Australian Winch and Haulage Company Pty Ltd v Collins [2013] NSWCA 327
Franco v Workers Compensation Nominal Insurer (No 2) [2021] NSWSC 129

Category: Costs
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: On 22 February 2021, the Court, as presently constituted, issued reasons for judgment and orders in the substantive proceedings in this matter. [1] The Court ordered judgment for the plaintiff and ordered damages under the principles of common law as qualified by the provisions of the Workers Compensation Act 1987 (NSW) (hereinafter “the 1987 Act”) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (hereinafter “the 1998 Act”).
1. Franco v Workers Compensation Nominal Insurer (No 2) [2021] NSWSC 129.
The Court granted leave to the parties to apply in relation to costs, interest and a number of other aspects. The plaintiff, pursuant to the leave granted, seeks an order for pre-judgment interest, which claim is governed by the terms of s 151M of the 1987 Act.

Legislation

It is necessary to recite the terms of s 151M of the 1987 Act, which is in the following terms:

“151M Payment of interest

Limited statutory entitlement A plaintiff has only such right to interest on damages as is conferred by this section.

(2), (3) (Repealed)

(4)

(a)    Interest is not payable (and a court cannot order the payment of interest) on damages unless—
(i)    information that would enable a proper assessment of the plaintiff’s claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff’s full entitlement to all damages of any kind but has not made such an offer, or
(ii)     the defendant has had a reasonable opportunity to make a revised offer of settlement (where it would be appropriate to do so) in the light…

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 503
Decision Date: 10 May 2021

CaseChat Overview and Summary

The case before the court involved Franco, the plaintiff, who sought compensation from Workers Compensation Nominal Insurer, the defendant, under the Workers Compensation Act 1987 (NSW). The plaintiff alleged that he suffered an injury due to a workplace incident and sought damages, including pre-judgment interest. The court was tasked with determining whether the statutory conditions for awarding pre-judgment interest were met, specifically whether the insurer had made a reasonable offer in writing to the plaintiff.

The legal issue before the court was whether the plaintiff had fulfilled the statutory pre-conditions set out in section 151M of the Workers Compensation Act 1987 (NSW) to be awarded pre-judgment interest. The court needed to determine whether the insurer had made a reasonable offer in writing to the plaintiff, which was a necessary condition for the plaintiff to be eligible for pre-judgment interest.

The court held that the statutory pre-conditions for awarding pre-judgment interest were not met as the insurer had not made a reasonable offer in writing to the plaintiff. The court noted that the absence of such an offer was a mandatory condition and that without it, the plaintiff was not entitled to pre-judgment interest. Consequently, the court ruled in favour of the insurer, finding that the plaintiff was not eligible for pre-judgment interest under section 151M of the Workers Compensation Act 1987 (NSW).

No pre-judgment interest was awarded to the plaintiff. The court's decision was based on the absence of a reasonable offer in writing from the insurer, a statutory requirement for such an award. The court did not award any pre-judgment interest as the statutory condition was not fulfilled.

Orders