Kabic v Workers Compensation Nominal Insurer (No 4)

[2018] NSWSC 330

Supreme Court

New South Wales

Medium Neutral Citation:	Kabic v Workers Compensation Nominal Insurer (No 4) [2018] NSWSC 330
Hearing dates:	26 February 2018
Decision date:	16 March 2018
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) Verdict for the plaintiff against the third defendant, Calcono Pty Ltd, in the sum of $452,395.18. (2) Costs reserved.
Catchwords:	TORT – negligence – personal injury – reasons supplementary to substantive judgment – correction of slip with consent of all parties – clarification of degree of non-economic loss after plaintiff attains a certain age – final orders made, except as to costs
Cases Cited:	Kabic v Workers Compensation Nominal Insurer (No 3) [2017] NSWSC 1281
Category:	Consequential orders (other than Costs)
Parties:	Milan Kabic (Plaintiff) Workers Compensation Nominal Insurer (First Defendant) Deicorp Constructions (NSW) Pty Ltd (Second Defendant) Calcono Pty Ltd (Third Defendant)
Representation:	Counsel: B J Gross SC (Plaintiff) F Curran (Plaintiff) N E Chen SC (First Defendant) R Perla (Second and Third Defendants)     Solicitors: Carters Law Firm (Plaintiff) HWL Ebsworth Laywers (First Defendant) Moray & Agnew Lawyers (Second and Third Defendants)
File Number(s):	2014/129949
Publication restriction:	Nil

Judgment

Introduction

1. I delivered my substantive judgment in this matter on 22 September 2017: see Kabic v Workers Compensation Nominal Insurer (No 3) [2017] NSWSC 1281. As can be seen from that judgment, the parties (each of whom was represented by specialist counsel very experienced in this area of law) had offered to provide thereafter draft orders reflective of my reasons, and taking into account the multifarious calculations that would need to be done.

2. It was subsequently submitted, however, that supplementary reasons should be provided by me, in order to permit that process fully to occur. In due course, a rather extended but very useful process of filing and serving of written submissions took place, which culminated in a hearing on 26 February 2018.

3. By that stage, the outstanding issues had become extremely refined. They were as follows.

4. First, it was unanimously agreed at the Bar table that a slip that had occurred in my judgment, whereby I referred to a putative retirement age of the plaintiff of 65, should be corrected to reflect the agreed position that it should be regarded as 67 years of age.

5. I accept that a slip of that nature can and should be corrected by way of this process, in the context of the unanimous agreement of all parties. The orders that I shall make shortly reflect that acceptance of mine.

6. The second issue was to do with future economic loss, but only after the point at which the plaintiff becomes 50 years of age.

7. All parties accepted that it was not open to me to revisit any factual or legal finding that I had made in my substantive judgment. Rather, their position was that it would be open to me merely to clarify any ambiguity about a finding of fact that arose in my judgment. Again, I accept that unanimous submission.

8. In my opinion, no party can be criticised for the question that has arisen; in other words, I accept that the relevant part of my judgment does admit of a certain ambiguity, and could have been expressed more clearly by me.

Supplement to substantive judgment

9. My clarification is as follows.

10. Firstly, my finding was that, due to the physically demanding nature of the work of a form worker, the plaintiff was able to earn a higher income in that position than if he had been otherwise employed.

11. Secondly, the fall that was at the centre of the proceedings put an end to the ability of the plaintiff to engage in that employment.

12. Thirdly, for quite some time, the fall has not prohibited the plaintiff from engaging in other forms of employment.

13. Fourthly, the employment of the plaintiff as a form worker would have come to an end in any event – due to his physical incapacity to perform it – by the time the plaintiff became 50 years of age.

14. Fifthly and finally, it follows that the fall has occasioned the plaintiff no future economic loss after the point at which he becomes 50 years of age.

15. Having clarified that outstanding issue in accordance with the submission of counsel for the second and third defendants, I proceed to make orders as to quantum in accordance with the calculations provided by him, the mathematical correctness of which was accepted by his opponents, on the contingency that his substantive submission found favour.

16. The following table is extracted from the written submission of counsel for the second and third defendants, and provides the basis of my ultimate pecuniary order.

Head of Damage	Award
Non-Economic Loss	$40,000.00
Past Economic Loss	$280,069.95
Past Superannuation	$30,807.69
Fox v Wood	$35,715.60
Future Economic Loss	$144,263.10
Future Superannuation	$15,263.10
Past Out-of-Pocket Expenses	$102,079.03
Future Treatment	$30,055.18
Subtotal	$678,253.65
Less Contributory Negligence	$225,858.47
Total	$452,395.18

Costs

17. As for costs, by the end of the latest hearing I understood that all counsel agreed that they should have an opportunity to make submissions about that topic after these outstanding issues had been resolved.

18. I accept that submission, and a timetable for the receipt of written submissions will be proposed to counsel shortly by my associate on my behalf. Of course, if any counsel seeks a brief oral hearing about the question of costs, that will be accommodated.

Orders

19. In accordance with the above, I make the following further orders:

(1)   Verdict for the plaintiff against the third defendant, Calcono Pty Ltd, in the sum of $452,395.18.

(2)    Costs reserved.

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