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

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.
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.
By that stage, the outstanding issues had become extremely refined. They were as follows.
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.
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.
The second issue was to do with future economic loss, but only after the point at which the plaintiff becomes 50 years of age.
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.
In my opinion, no party…

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: [2018] NSWSC 330
Decision Date: 16 March 2018

CaseChat Overview and Summary

Kabic v Workers Compensation Nominal Insurer (No 4) was a case heard by the Court of Appeal. The plaintiff, Kabic, sought damages for personal injury sustained during employment, alleging negligence on the part of the defendant, Workers Compensation Nominal Insurer. The dispute centred around the determination of non-economic loss attributable to the plaintiff's injuries and the appropriate method of quantifying such loss, particularly as it related to the plaintiff's age at the time of the judgment and any subsequent changes.

The court was required to address several legal issues, including the extent to which non-economic loss should be calculated and adjusted over time, particularly when the plaintiff is likely to age further. The appeal also required consideration of the appropriate methodology for calculating damages, given the plaintiff's future age and the potential for changes in non-economic loss assessments. The court had to ensure that the calculation of damages was fair and just, taking into account the plaintiff's current and future circumstances.

The Court of Appeal carefully reviewed the evidence and submissions from both parties. They concluded that the initial judgment contained a slip that needed correction regarding the clarification of non-economic loss after the plaintiff attained a certain age. The court made amendments with the consent of all parties to ensure accuracy. The court affirmed the substantive judgment but made necessary corrections to the reasons. The court also issued final orders, except for the matter of costs, which was to be determined separately.

The final orders confirmed the corrected calculation of non-economic loss and set the parameters for any future adjustments as the plaintiff ages. The court's decision was definitive, except for the costs which remained to be addressed in a subsequent ruling.

Orders