Khan v Polyzois (No 2)

[2006] NSWCA 225

New South Wales

Court of Appeal

CITATION:	KHAN v POLYZOIS (NO 2) [2006] NSWCA 225
HEARING DATE(S):	21 July 2006
JUDGMENT DATE:	14 August 2006
JUDGMENT OF:	Mason P at 1; Hislop J at 11
DECISION:	Motion dismissed with costs.
CATCHWORDS:	JUDGMENTS AND ORDERS – Variation after judgment entered – When hearing conducted on agreed basis that statutory provision would not apply – Whether slip rule applies – Workers Compensation Act 1987, s 151Z(1), Uniform Civil Procedure Rules, 36.16. (ND)
LEGISLATION CITED:	Workers Compensation Act 1987
CASES CITED:	Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249
PARTIES:	Hamid KHAN John POLYZOIS
FILE NUMBER(S):	CA 40755/04
COUNSEL:	Appellant: S Kalfas SC Respondent: M Fraser
SOLICITORS:	Appellant: David Ian Brown Respondent: Bryden's Law Office

CA 40755/04

MASON P
HISLOP J

Monday 14 August 2006

Hamis KHAN v John POLYZOIS (No 2)

JUDGMENT

1 MASON P: On 12 April 2006 orders were made in this appeal as follows (Khan v Polyzois [2006] NSWCA 59):

1) Appeal upheld;
2) Judgment for the respondent set aside and in lieu thereof judgment for the appellant.
3) The judgment monies of $86,204.00 paid into the District Court on behalf of the appellant on 5 October 2004 pursuant to order of Judge Twigg made on 20 September 2004 together with any interest that has accumulated thereon to be repaid.
4) The respondent is to pay the appellant’s costs of the appeal and in court below and is to have a certificate under the Suitor’s Fund Act 1951 if otherwise qualified.

2 The orders were entered on 20 April. An application for special leave to appeal was lodged in the High Court on 10 May 2006.

3 On 28 April 2006 further submissions were filed on behalf of the respondent, seeking orders setting aside those made and entered and substituting a verdict in favour of the respondent for the sum of $17,622.70 with an order that the verdict should be stayed. The respondent also sought an order that the appellant pay the costs of the hearing in the District Court.

4 The matter was listed for argument. The appellant opposed the application, invoking UCPR 36.16, and submitting that no occasion had arisen for the invocation of the slip rule or any other principle justifying this Court in recalling the now completed matter. It was pointed out that the notice of appeal had expressly contemplated that the respondent’s damages might be reduced to nil in which event the appellant was seeking a verdict in his favour with costs.

5 The respondent’s application concerns pars [43]-[49] of the reasons of Hislop J (with whom I agreed). It is submitted that s151Z(1) of the Workers Compensation Act 1987 applies, par (b) in particular. On this basis, there should have been no deduction with respect to the workers compensation lump sum payment. Rather, there should have been a verdict in the respondent’s favour in the sum of $17,622.70 (see par [48]), leaving the respondent liable to pay an equivalent amount of compensation to his employer’s insurer out of those damages. It was further submitted that this adjustment should have favourable costs consequences for the respondent/plaintiff as regards the trial in the District Court.

6 The respondent’s motion must be refused, on two grounds.

7 First, the case does not attract the slip rule or any other possible basis upon which this Court might re-visit the orders already made and entered. As Hislop J pointed out in our earlier judgment (at [43]), the parties conducted the appeal on the basis that s151Z did not apply and that any deduction from the verdict for workers compensation payments or entitlements was to be determined by the application of general principles against double compensation. We have been taken to passages in the transcript of both the leave hearing and the appeal itself which confirm the correctness of this common express understanding. Early in the hearing of the appeal, senior counsel for the appellant informed the Court that there was no dispute that the trial judge had correctly deducted the compensation award of $35,000 (CA Tr p2).

8 Secondly, this was a case where s151Z(1) had no application. It only addresses the situation where a single injury generates both an employer’s liability to pay compensation and a liability for some other person to pay damages “in respect of the [same] injury” (see generally Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249 at 259ff). In the present case, the respondent suffered a compensable injury on 8 September 2001 while he was lifting a table in the course of his employment. His cause of action against the appellant arose only on and from 9 September 2001 in consequence of the appellant’s failure then to diagnose the existing injury and to treat it appropriately. The appellant’s liability in damages was for failure to treat the pre-existing injury.

9 It is not to the point that the appellant’s negligence as a doctor may not have broken any chain of causation referable to the employer’s obligation to pay compensation stemming from the workplace injury. Merely because compensation was payable with reference to the consequences of the loss of the testicle does not establish that the doctor’s liability to pay damages for the tort he committed was in respect of the same injury as the work injury that occurred the previous day.

10 The respondent’s motion must be dismissed with costs.

11 HISLOP J: I agree with Mason P.

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