Menzies Wagga Western Pty Ltd v Briggs; Briggs v Menzies Wagga Western Pty Ltd

[2003] NSWCA 218

CITATION:	MENZIES WAGGA WESTERN PTY LTD v BRIGGS; BRIGGS v MENZIES WAGGA WESTERN PTY LTD [2003] NSWCA 218 revised - 18/08/2003
HEARING DATE(S):	28 July 2003
JUDGMENT DATE:	28 July 2003
JUDGMENT OF:	Sheller JA at 1; Santow JA at 17; Young CJ in Eq at 18
DECISION:	1 On the defendant's application leave is granted to the defendant to appeal; 2 Order that the appeal be upheld and the verdict for the plaintiff set aside together with the order that the defendant pay the plaintiff's costs. In lieu thereof substitute; Verdict for the defendant; Plaintiff to pay the defendant's costs; 3 The plaintiff to pay the defendant's costs of the plaintiff's unsuccessful application and also the costs of the defendant's application.
CATCHWORDS:	Practice and Procedure - Appeals - Damages - Non-economic loss - Statutory Threshold - s 151G(2) Workers Compensation Act 1987 - Reasons for Decision. - Negligence - No recoverable damages due to statutory threshold - Verdict for defendant - Liability found - Costs - Whether costs should be awarded to plaintiff because liability found even though statutory threshold of damages not reached.
LEGISLATION CITED:	Workers Compensation Act 1987
CASES CITED:	Milne v Attorney General for Tasmania (1956) 95 CLR 460
PARTIES :	Menzies Wagga Western Pty Ltd - Claimant/Opponent Lois Theresa Briggs - Opponent/Claimant
FILE NUMBER(S):	CA 40818/02; 40864/02
COUNSEL:	W P Kearns SC/J Fernan - Plaintiff CRR Hoeben SC - Defendant
SOLICITORS:	Steve Masselos & Co - Plaintiff P W Turk & Associates -Defendant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	242/01
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

CA 40818/02
CA 40864/02

SHELLER JA
SANTOW JA
YOUNG CJ in EQ

Monday, 28 July 2003

MENZIES WAGGA WESTERN PTY LTD v BRIGGS

BRIGGS v MENZIES WAGGA WESTERN PTY LTD

Judgment

(Applications)

1 SHELLER JA: These are two applications for leave to appeal from the decision of Judge Goldring given on 2 September 2002 in proceedings brought by Lois Briggs to recover damages as a result of workplace injury, from Menzies Wagga Western Pty Limited. The first of these applications is by Menzies, the second by Ms Briggs. It is convenient that I first deal with Ms Briggs’s application.

2 In broad terms, the application had three bases. The first was directed to the way in which his Honour dealt with damages for non-economic loss. His Honour refused to award damages on any other ground. In fact, apparently the out-of-pocket expenses had been taken up in workers compensation payments.

3 In the reasons for judgment, his Honour said that he must assess the plaintiff’s pain and suffering as a proportion of “the most extreme case”: s151G(2) of the Workers Compensation Act 1987. His Honour found that this was 17.5 per cent and then did a calculation which resulted in an award of $21,515.

4 The following day, that is to say 3 September, the matter was mentioned again before the trial Judge and he said that he had been referred to s151G in its form current at the time of injury and because of the degree of the most extreme case he said that he found that the plaintiff could receive no statutory damages for non-economic loss. In short, this was because the amount that his Honour fixed upon before applying the formula fell below the threshold. The amount that his Honour had fixed upon for that purpose was $41,378.75. There is no doubt that his Honour was correct in what he said in this respect.

5 Mr Kearns SC, who put the submissions on behalf of the claimant/plaintiff, submitted that this Court should understand the judgment to mean that the trial Judge intended to award an amount for non-economic loss which exceeded the threshold, which was then some $41,000, and that in some way his Honour mistakenly pronounced the amount of the damages at a lesser figure.

6 For reasons that largely emerged during the course of submissions, I find this approach impossible, with due respect, to maintain. It is quite clear from reading the judgment that his Honour intended to fix the damages at 17.5 per cent. He then discovered that, unfortunately from the plaintiff’s point of view, that fell below the threshold. The inevitable consequence of that was that the plaintiff was entitled to no damages. In my opinion, it would not be possible for this Court on any sort of review to interfere with that award in the manner suggested.

7 It was also pointed out as a second ground that his Honour, instead of using the standard term “a most extreme case”, had used the expression “the most extreme case”. It was said that that involved a misunderstanding of how the method of assessment worked and that on that basis the plaintiff was entitled to have the Court interfere. Again, in my opinion, this ground has no substance. An experienced Judge would no doubt have in mind an appropriate percentage for injury of this sort when coming to assess non-economic loss and there is nothing to suggest that in some way his Honour was misled in the approach he took by reference to using the word “the” instead of “a” when talking about an extreme case.

8 The third basis upon which leave to appeal was sought on behalf of the plaintiff was that his Honour had failed to give adequate reasons for the conclusions he arrived at on quantum. This part of the reasons for judgment are set out under the heading “Quantum”. In the course of his submissions, Mr Kearns concentrated largely on the first paragraph on p8 of the reasons for judgment and pointed to a number of expressions in that paragraph that suggested that his Honour was reaching conclusions about the seriousness of the injury, particularly the shoulder injury to the plaintiff, taking account of things that were out of line with the evidence that had been given. For example, his Honour said that the plaintiff was adamant that she did not want surgery. He also referred to the fact that there did not appear to have been any MRI scan that would have revealed the full extent of her shoulder injury and said that he could not assume that it was extremely serious.

9 However, if one proceeds further into the judgment that follows from the paragraph to which I have referred, it becomes apparent that his Honour was persuaded to the conclusion he reached largely having regard to the evidence that the plaintiff gave, particularly during cross-examination, to her evidence of her ability to resume both workplace and domestic activities and to a video tape that was in evidence.

10 Having referred, albeit quite briefly, to this material, to which we were taken during argument in greater detail, his Honour said that the plaintiff’s injury was undoubted but:

“I find that it was not as serious as she asserted, and in fact, after some treatment and a period of convalescence, she recovered to a stage where she was able to continue with most of her former work and domestic functions. There is some residual injury, but, not such as in my opinion seriously impairs her capacity to earn. She is now 60. There was some debate about when she would in fact retire, I accept that she would have worked beyond 60, but probably not until 65”.

11 While I would agree that, with due respect to the trial Judge, the reasons and the explanation of them might have been fuller, I am not persuaded that there is any real doubt about the reasons that led his Honour to conclude that the injuries were not as serious as the plaintiff asserted and enabled him to come to the conclusion that followed about damages.

12 Accordingly, in my opinion, the application for leave to appeal on the plaintiff’s behalf should be refused.

13 The application made on behalf of the defendant is directed to the form of judgment that the trial Judge made on 3 September. Having come to the conclusion that he could award no damages because of the threshold under the Workers Compensation Act, his Honour stated as follows:

“There will therefore be a verdict for the plaintiff, no damages payable because of statute, defendant to pay plaintiff’s costs”.

14 It is accepted that on a claim based on negligence, if no damages are proved by the plaintiff to be recoverable, there must be a verdict for the defendant. The only question that was argued was whether or not, even so, the defendant should be ordered to pay the plaintiff’s costs. It was said that albeit that the threshold had not been reached, liability had been found in favour of the plaintiff.

15 Mr Hoeben SC, who appeared for the defendant, referred us to a passage in the decision of the High Court in Milne v Attorney General forTasmania (1956) 95 CLR 460 at p 477 where the High Court said:

“It is a general rule that a wholly successful defendant should receive his costs unless good reason is shown to the contrary, and no reason to the contrary was shown in this case”.

16 In my opinion, the ordinary rule that costs follow the event in this type of case should be applied. Accordingly, I would propose:

1. On the defendant’s application leave is granted to the defendant to appeal.

2. Order that the appeal be upheld and the verdict for the plaintiff set aside together with the order that the defendant pay the plaintiff’s costs. In lieu thereof substitute:

Verdict for the defendant
Plaintiff to pay the defendant’s costs

3. The plaintiff to pay the defendant’s costs of the plaintiff’s unsuccessful application and also the costs of the defendant’s application.

17 SANTOW JA: I agree.

18 YOUNG CJ in EQ: I agree.

19 SHELLER JA: The orders of the Court will therefore be as I pronounced them.

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Last Modified: 08/18/2003