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

Menzies Wagga Western Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge who had found the company liable in negligence to the respondent, Mr Briggs, but had awarded no damages due to the respondent failing to meet the statutory threshold for non-economic loss under section 151G(2) of the *Workers Compensation Act 1987* (NSW). The primary judge had nonetheless ordered the defendant to pay the plaintiff's costs. The appeal concerned the consequences of this finding, specifically regarding the award of costs.

The central legal issue before the Court of Appeal was whether the primary judge erred in ordering the defendant to pay the plaintiff's costs when the plaintiff had been found to have suffered no recoverable damages due to failing to meet the statutory threshold for non-economic loss. The court was required to determine the appropriate approach to costs in circumstances where liability was established but no damages were awarded because of a statutory bar.

The Court of Appeal, comprising Sheller and Santow JJA and Young CJ in Eq, upheld the defendant's appeal. The court reasoned that the general rule that costs follow the event should not apply in this instance. The primary judge's finding of liability, while technically correct, was rendered nugatory by the operation of the statutory threshold, meaning the plaintiff had ultimately not succeeded in recovering any damages. Therefore, the court concluded that it was inappropriate to order the defendant to pay the plaintiff's costs.

Consequently, the Court of Appeal set aside the verdict for the plaintiff and the order for the defendant to pay the plaintiff's costs. In substitution, a verdict was entered for the defendant, and the plaintiff was ordered to pay the defendant's costs. The plaintiff was also ordered to pay the defendant's costs for both the plaintiff's unsuccessful application and the defendant's successful application for leave to appeal.