Franklins Self Serve Pty Ltd v Wyber

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Reported Decision: 48 NSWLR 249

New South Wales


Court of Appeal

CITATION: FRANKLINS SELF SERVE PTY LTD v WYBER [1999] NSWCA 390 revised - 08/12/99
FILE NUMBER(S): CA 40698/98
HEARING DATE(S): 22 July 1999
JUDGMENT DATE:
5 November 1999

PARTIES :
FRANKLINS SELF SERVE PTY LTD
BEVERLEY FAY WYBER
JUDGMENT OF: Mason P at 1; Sheller JA at 121; Cole AJA at 125
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S) : DC 6473/97
LOWER COURT JUDICIAL OFFICER: Boyd-Boland ADCJ
COUNSEL: A: J Poulos QC/ M L Williams/ C Pinkerton
R: D A Wheelahan QC/ J Singh
SOLICITORS: A: Glover & Glover
R: Cawoods
CATCHWORDS: DAMAGES - Personal injuries - Whether the injuries for which damages were awarded stemmed from the original tort - Impact of later non-tortious injuries - Offsetting of workers compensation payments - Double compensation; WORKERS COMPENSATION - Relationship of damages claim to workers compensation award previously made against employer at time of tort and against later employer - Rule against double compensation - Application of s151Z of the Workers Compensation Act 1987 - Discussion of legislative scheme and common law principles
ACTS CITED: Workers Compensation Act 1987 s151Z
Compensation Court Act 1984
Workers Compensation Act 1926
DECISION: Appeal dismissed. See also par 120.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
                                CA 40698/98

    DC 6473/97

    MASON P
                                  SHELLER JA
                                  COLE AJA
                            Friday 5 November 1999

    FRANKLINS SELF SERVE PTY LTD
    v Beverley WYBER


The respondent suffered a series of back injuries, beginning with an injury on 8 May 1989 as a result of the appellant’s negligence when she slipped and fell while descending a stairway at the appellant’s Lane Cove premises. She was there in the course of her employment with the NSW Egg Corporation. Subsequent incidents while working for George Weston Foods Pty Ltd, which were not the result of negligence, caused her to suffer severe back pain.

In 1994 a workers compensation award for lump sum and weekly payments was made by consent in the respondent’s favour against the two employers, NSW Egg Corporation and George Weston. These employers agreed to bear the burden equally.

Boyd-Boland ADCJ found the appellant to be negligent in relation to the 1989 accident at Lane Cove and entered a verdict in the sum of $528,844.54. The primary judge accepted the evidence of the respondent and her treating doctor that all of her pain and disability was caused by the 1989 tort and that the 1991 and 1992 incidents which had also occurred while at work were merely exacerbations of her basic condition.

The appellant challenged the trial judge’s findings about the causal impact of the tortious injury. It also submitted that the trial judge had erred in not taking into account all of the compensation rights of the respondent, past and in the future, and in failing to deduct from the relevant heads of damages all amounts received and likely to be received from both employers. Reliance was placed upon the rule against double compensation…

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Details
Case
[1999] NSWCA 390
Decision Date

CaseChat Overview and Summary

Franklins Self Serve Pty Ltd appealed to the Supreme Court of New South Wales, Court of Appeal, against a decision concerning damages awarded to Mr Wyber for personal injuries. The core of the dispute revolved around whether the injuries for which damages were awarded were a consequence of the original tort, and how later, non-tortious injuries, as well as workers' compensation payments, should impact the final award.

The Court of Appeal was required to determine whether the trial judge had erred in assessing the damages awarded to Mr Wyber. Specifically, the court had to consider the application of the rule against double compensation, particularly in light of workers' compensation payments made by both the employer at the time of the original tort and a subsequent employer. The court also had to interpret and apply section 151Z of the Workers Compensation Act 1987 (NSW) in relation to these circumstances.

The Court of Appeal ultimately dismissed the appeal, upholding the trial judge's decision. The reasoning focused on the legislative scheme and common law principles governing the recovery of damages for personal injuries, particularly where subsequent injuries, whether tortious or not, and workers' compensation payments are involved. The court considered the extent to which the original tort remained the causative factor for the injuries claimed and how to prevent Mr Wyber from receiving double compensation for the same loss. The court also directed the parties to consider specific issues raised in paragraphs 116-119 of the judgment and to comply with the directions outlined in paragraph 119.

Orders

Orders of the court

1. Subject to order 2, appeal dismissed with costs.

2. Direct the parties to consider the issue raised in pars 116-119 and to comply with the directions in par 119.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40698/98

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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