Libreri v Ironidol Pty Ltd (No 2) - [2007] NSWCA 198

New South Wales

Court of Appeal

CITATION: LIBRERI v IRONIDOL PTY LTD & ORS (No 2) [2007] NSWCA 198

HEARING DATE(S): On the papers

JUDGMENT DATE:
13 August 2007

JUDGMENT OF: Mason P at 1; Beazley JA at 1; Basten JA at 35

DECISION: Appeal allowed.

CATCHWORDS: DAMAGES – General principles – future economic loss – superannuation - whether award made in previous proceedings inclusive of superannuation – not inclusive of superannuation - TORTS – The law of torts – generally – joint or several – tortfeasors – contribution –liability in respect of the same damage – where proceedings against employer commenced prior to introduction of Civil Liability Act 2002 – where third party joined to proceedings after commencement of Civil Liability Act 2002 – applicability of Civil Liability Act – Workers Compensation Act 1987 NSW, s 151Z(2) – Civil Liability Act 2002, s 19(3) - WORKERS' COMPENSATION – Alternative rights against employer and/or third parties

LEGISLATION CITED: Civil Liability Act 2002
District Court Rules 1973 (NSW)
Superannuation Guarantee (Administration) Act 1992 (Cth)
Workers Compensation Act 1987

CASES CITED: Amaca Pty Ltd v Cremer [2006] NSWCA 164
Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203
Gordian Runoff Ltd v Heyday Group Pty Ltd [2005] NSWCA 29
Grljak v Trivan Pty Ltd (1994) 35 NSWLR 82
Leonard v Smith (1992) 27 NSWLR 5
Libreri v Ironidol Pty Ltd [2006] NSWCA 266
Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106

PARTIES: Steven LIBRERI
IRONIDOL PTY LTD & Ors

FILE NUMBER(S): CA 40693/05

COUNSEL: Appellant: S Norton SC/E Walsh
Respondent: L King SC/ M Robinson

SOLICITORS: Appellant: Brydens Law Office
Respondent: Wootton & Kearney

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 13263/01

LOWER COURT JUDICIAL OFFICER: Rolfe DCJ

CA 40693/2005

MASON P
BEAZLEY JA
BASTEN JA
Monday 13 August 2007

Steven LIBRERI v IRONIDOL PTY LTD & Ors (No 2)

JUDGMENT

1 MASON P and BEAZLEY JA: On 28 September 2006 the parties were directed to file draft orders to give effect to the reasons of the Court (Libreri v Ironidol Pty Ltd [2006] NSWCA 266 at [74]).

Superannuation loss with respect to future economic loss

2 Subsequently, disagreement emerged as to the intent of the Court referable to “future economic loss and attendant superannuation loss”.

3 As recorded in the earlier reasons (at [39]), the trial judge had accepted that an allowance should be made for the fact that the appellant may not be able to work for the 31 years that would elapse before normal retirement age. The $75,000 awarded represented a future wage loss of approximately $100 per week for 31 years, with the usual 15% for vicissitudes, plus allowance for future superannuation entitlement. There were separate awards for “past wage loss” and “past super” and a composite award of $75,000 for “future cushion”. However, the mathematics and the reasoning of the trial judge (who referred to “future economic loss, including loss of future superannuation entitlements”: Red 52) confirm that…

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: [2007] NSWCA 198
Decision Date: 13 August 2007

CaseChat Overview and Summary

The proceeding concerned an appeal from a decision of the District Court of New South Wales. The appellant, Libreri, had commenced proceedings against his employer, Ironidol Pty Ltd, for damages for personal injury sustained in the course of his employment. Ironidol Pty Ltd subsequently joined a third party, the respondent, to the proceedings. The core dispute revolved around whether the damages awarded to Libreri in earlier proceedings against Ironidol Pty Ltd included an amount for superannuation, and the extent to which the respondent, as a third party, could be held liable for contribution.

The Court of Appeal was required to determine two primary legal issues. Firstly, it needed to ascertain whether the previous award of damages made in favour of the appellant against his employer encompassed an amount for future economic loss by way of superannuation. Secondly, the Court had to consider the applicability of the *Civil Liability Act 2002* (NSW) to the third party proceedings, given that the original proceedings against the employer were commenced before the introduction of that Act, while the third party was joined after its commencement. This involved an examination of the interplay between section 151Z(2) of the *Workers Compensation Act 1987* (NSW) and section 19(3) of the *Civil Liability Act 2002* (NSW).

The Court reasoned that the previous award of damages was not inclusive of superannuation. It found that the legislation governing the proceedings, particularly the *Workers Compensation Act 1987* (NSW), did not mandate the inclusion of superannuation in such awards at the time. Furthermore, the Court determined that the *Civil Liability Act 2002* (NSW) did not apply retrospectively to the third party proceedings in a manner that would alter the rights and liabilities established under the previous legislative framework. Consequently, the appeal was allowed.

Orders

Orders of the court

Appeal allowed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	LIBRERI v IRONIDOL PTY LTD & ORS (No 2) [2007] NSWCA 198
HEARING DATE(S):	On the papers
JUDGMENT DATE:	13 August 2007
JUDGMENT OF:	Mason P at 1; Beazley JA at 1; Basten JA at 35
DECISION:	Appeal allowed.
CATCHWORDS:	DAMAGES – General principles – future economic loss – superannuation - whether award made in previous proceedings inclusive of superannuation – not inclusive of superannuation - TORTS – The law of torts – generally – joint or several – tortfeasors – contribution –liability in respect of the same damage – where proceedings against employer commenced prior to introduction of Civil Liability Act 2002 – where third party joined to proceedings after commencement of Civil Liability Act 2002 – applicability of Civil Liability Act – Workers Compensation Act 1987 NSW, s 151Z(2) – Civil Liability Act 2002, s 19(3) - WORKERS' COMPENSATION – Alternative rights against employer and/or third parties
LEGISLATION CITED:	Civil Liability Act 2002 District Court Rules 1973 (NSW) Superannuation Guarantee (Administration) Act 1992 (Cth) Workers Compensation Act 1987
CASES CITED:	Amaca Pty Ltd v Cremer [2006] NSWCA 164 Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203 Gordian Runoff Ltd v Heyday Group Pty Ltd [2005] NSWCA 29 Grljak v Trivan Pty Ltd (1994) 35 NSWLR 82 Leonard v Smith (1992) 27 NSWLR 5 Libreri v Ironidol Pty Ltd [2006] NSWCA 266 Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106
PARTIES:	Steven LIBRERI IRONIDOL PTY LTD & Ors
FILE NUMBER(S):	CA 40693/05
COUNSEL:	Appellant: S Norton SC/E Walsh Respondent: L King SC/ M Robinson
SOLICITORS:	Appellant: Brydens Law Office Respondent: Wootton & Kearney
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 13263/01
LOWER COURT JUDICIAL OFFICER:	Rolfe DCJ