Milne v SDN Children's Services and BRC Recruitment Pty Ltd (No. 2)

[2025] NSWSC 310

Supreme Court

New South Wales

Medium Neutral Citation:

Milne v SDN Children’s Services and BRC Recruitment Pty Ltd (No. 2) [2025] NSWSC 310

Hearing dates:

Submissions received on 13 December 2024, 6, 7, 24 and 26 February 2025.

Date of orders:

04 April 2025

Decision date:

04 April 2025

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The plaintiff shall bring in Short Minutes of Order reflecting this judgment within 14 days of the publication thereof.

Catchwords:

NEGLIGENCE – effect of the primary judgment – causation – reopen – refused

NEGLIGENCE – damages – non-economic loss –significant disablement of the plaintiff – 25% of the most extreme case – s 16(3) of the Civil Liability Act 2002 (NSW)

NEGLIGENCE – damages – past economic loss – offer of full-time employment – calculation using award rate – reduction for time off work for inevitable total knee replacement regardless of injury

NEGLIGENCE – damages – future economic loss – earning capacity – 15% discount for vicissitudes

NEGLIGENCE – damages – superannuation – Fox v Wood

NEGLIGENCE – damages – past treatment expenses – where past treatment expenses and past out-of-pocket expenses have the same source, the amount cannot be claimed twice

NEGLIGENCE – damages – future treatment expenses

NEGLIGENCE – damages – s 151Z of the Workers Compensation Act 1987 (NSW) – apportionment of damages between first and second defendants - interest

COSTS – offer of compromise – whether indemnity costs should be awarded – no evidence of offer of compromise – costs ordered on an ordinary basis

INTEREST – whether interest payable for damages – s 151M of the Workers Compensation Act 1987 (NSW) – interest payable by the first defendant

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Superannuation Guarantee (Administration) Act 1992 (Cth)

Workers Compensation Act 1987 (NSW)

Civil Liability (Non-economic Loss) Amendment Order 2024 (NSW)

Superannuation (CSS) (Superannuation Guarantee) Regulations 2008 (Cth)

Cases Cited:

Andrew Goodman v Impact Hire Australia Pty Limited & Anor [2009] NSWSC 941

Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; [1968] HCA 9

Falkner v. Bourke (1990) 19 NSWLR 574

Fox v Wood (1981) 148 CLR 438; [1981] HCA 41

Milne v SDN Children’s Services and BRC Recruitment Pty Ltd [2024] NSWSC 1495

Reece v Reece (1994) 19 MVR 103

Category:

Consequential orders

Parties:

Cheryl Anne Milne (Plaintiff)
SDN Children’s Services (First Defendant)
BRC Recruitment Pty Ltd (Second Defendant)

Representation:

Counsel:
C.T. Barry KC with T Meakes (Plaintiff)
N Polin SC (First Defendant)
S Flett (Second Defendant)
Solicitors:
Gorman Jones Lawyers (Plaintiff)
McCabes Lawyers (First Defendant)
Hall and Wilcox Lawyers (Second Defendant)

File Number(s):

2018/382709

Publication restriction:

nil

JUDGMENT

1. By an Amended Statement of Claim filed on 1 September 2022 (“the ASOC”), Cheryl Anne Milne (“the plaintiff”) commenced negligence proceedings against SDN CHILDREN'S SERVICES ABN 23000014335 (“the first defendant”) and BRC Recruitment Pty Limited (“the second defendant”).

2. The Court delivered judgment with respect to that claim on 27 November 2024 in Milne v SDN Children’s Services and BRC Recruitment Pty Ltd [2024] NSWSC 1495 (“the primary judgment”) in which the following directions were made:

“(1) The plaintiff shall file and serve Short Minutes of Order which reflect this judgment, including the quantification of damages, and further submissions as to the quantification of damages (where leave has been given by the Court in this judgment) together with a program for the receipt of submissions and evidence as to costs and interest on or before 18 December 2024.

(2) The defendants shall file and serve any alternative version of the Short Minutes of Order to that served under (1) above, together with any submissions in reply and alternative program for costs and interest (if any) on or before 15 January 2025.

(3) The parties shall have liberty to apply to the Court to vary these orders and directions provided such liberty is exercised within 7 days of the date of this judgment.”

3. As a result, the plaintiff filed supplementary submissions on 13 December 2024 accompanied with a proposed Short Minutes of Order. I briefly note, at this juncture, the plaintiff’s Short Minutes of Order may not be adopted because of the conclusions I have reached in this supplementary judgment. Directions for the filing of further Short Minutes of Order will be made by the Court at the conclusion of this judgment.

4. The first defendant sought an extension in time to file supplementary submissions which was not opposed by the plaintiff. In that light, the Court granted the extension to the first and second defendants and the first and second defendants filed their supplementary submissions on 7 February 2025.

5. In determining the issues in this supplementary judgment, the Court will hereafter use the short forms used in the primary judgment.

6. An issue arose from the supplementary submissions of the plaintiff regarding a potential ambiguity concerning whether the primary judgment found there was a causal connection between the incident and the plaintiff contracting a knee infection in May 2018 and undergoing a secondary operation.

7. In essence, the plaintiff sought to argue the effect of the primary judgment (and went further to challenge the discussion of the merit of the primary judgment) by contending that the Court found (or should have found) that there was a causal connection between the incident and the plaintiff contracting a knee infection in May 2018 and undergoing a secondary operation. The first defendant’s supplementary submissions, in this respect, accepted the Court had found against the causal link but did not provide in submissions any justification for that position while the second defendant contended that the position adopted by the plaintiff could not be properly maintained in the face of the primary judgment.

8. On 20 February 2025, the Court sent a communication to the parties indicating that the Court did not accept the plaintiff’s contention as to the effect of the primary judgment in that respect and advised that reasons for that view would be expressed in this supplementary judgment (“the communication”). The communication also provided the parties an opportunity to amend their submissions on “damages” in light of the communication by filing further supplementary submissions within 7 days of that communication.

9. In response to the communication, senior counsel for the plaintiff filed further supplementary submissions on 26 February 2025 which nevertheless maintained the plaintiff’s position in her supplementary submissions and further sought to reopen the causal connection issues. This approach was adopted notwithstanding the primary judgment and in the absence of any leave being sought or granted to take that step (submissions only having been invited with respect to damages and only in the light of the Court’s intimation of 20 February 2025). The plaintiff, notwithstanding the opportunity provided, also failed to submit further Short Minutes of Order having regard to the intimation the Court gave on 20 February 2025.

10. The first defendant filed brief further supplementary submissions on 26 February 2025 which did not propose to make any further submissions but correctly stated “[t]he plaintiff’s submissions dated 26 February 2025 do not address the matters raised in the Court’s email dated 20 February 2025 but rather seek to challenge the findings already made by the Court. Those submissions should be disregarded by the Court”. The second defendant filed brief further supplementary submissions on 24 February 2025 which maintained their position in the supplementary submissions.

11. The Court agrees with the first defendant’s submission that the plaintiff’s further supplementary submissions do not address matters raised in the communication and challenged findings already made by the Court. No leave was sought to do so until after the step was taken (and a submission made to re-open submissions) or any appropriate justification given for the application adopted. There was simply a desire to reopen argument after submissions were closed and judgment reversed. Accordingly, the plaintiff’s approach should be rejected.

12. The Court should, however, deal with the plaintiff’s erroneous submissions as to the effect of the primary judgment

13. What appears below are the reasons the Court do not accept the plaintiff’s challenge to the effect of the primary judgment with respect to their contention that the Court found there was a causal connection between the incident and the plaintiff contracting a knee infection in May 2018 and undergoing a secondary operation.

14. In support of her position, in supplementary submissions, the plaintiff relied upon two sentences in [524] and [585(11)] ^[1] of the primary judgment said to support her position in this respect. Particular attention was focused upon the use of a double negative in [585(11)] (I note the same sentence also appears in [524] with the addition of the words “in my view” at the beginning of the sentence). The relevant part of [524] for this purpose was:

“…the evidence does not sustain that the knee infection which occurred some two years after the operation was not a consequence of the operation. That condition and the subsequent knee operation may not be causally linked to the incident.” 

1. I note that it appears the plaintiff mistakenly referred to [285(11)] instead of [585(11)] in footnote 7 of her supplementary submissions.

15. Whilst there is a potential ambiguity in the double negative in [524] and [585(11)], in my view, no sensible reading of the primary judgment can give rise to the contention advanced by the plaintiff.

16. First, the reasoning of the Court leading up to [524] lends of no other conclusion. I also note, in this respect, the final sentence of [524] makes plain the conclusion by the Court is in line with the opinions of Professor Shatwell and Dr Machart who both give evidence that sustains the denial of any causal link between the incident and the May 2018 knee infection and subsequent operation.

17. Secondly, the Court dealt with the question of non-economic loss soon after the passage of the primary judgment at [524] and [543] to [549] make it abundantly clear the conclusion as to causation, with respect to the knee infection and subsequent operation, the Court had reached. Those passages of the primary judgment were as follows:

“543. I have found that the incident exacerbated her pre-existing pathology with respect to the medial femoral condyle. There was a causal connection with the need for a total knee replacement to that extent. The delay in that knee replacement caused some post operative difficulties in terms of a flexed knee. Those difficulties continued through to the need for manipulation in 2017 and physiotherapy with limited improvement. I have found that there was not a causal connection between the injury and her ultimate treatment for an infection (and consequently the further knee replacement surgery).

544. It follows that the plaintiff’s significant disablement resulting from the incident continued until the significant deterioration of her condition as a result of the infection.

545. I accept the submission of the plaintiff that the plaintiff experienced distressing pain and disability.

546. In all the circumstances, there is a proper basis for the award of damages for non-economic loss. The first defendant quantified non-economic loss as 20% of the most extreme case although that submission was predicated only upon the consideration of a twisting injury in the fall causing the lateral tibial plateau fracture (which I have also found).

547. The plaintiff proposed a non-economic loss of 35% of a most extreme case but predicated her submission upon the basis of, inter alia, the infection suffered by the plaintiff, the insertion of a cement anti-biotic block and a subsequent knee replacement.

548. Whilst the parties’ submissions were predicated on some considerations about which I have made contrary findings in this judgment, there is a proper basis to find, in my view, that the percentage allowance for non-economic loss as being 25% of the most extreme case. However, I will hear the parties further in that respect if they wish to advance further submissions.

549. The parties should provide their position on the quantification for non-economic loss on that basis, namely, based upon the aforementioned preliminary view or in accordance with any further written submissions.”

18. When dealing with non-economic loss the conclusion is stated starkly. At [543] of the primary judgment the Court stated, “I have found that there was not a causal connection between the injury and her ultimate treatment for an infection (and consequently the further knee replacement surgery)”.

19. Thirdly, the two passages relied upon by the plaintiff ([524] and [585(11)]) obviously derive as conclusions from the evidence examining the question to which the conclusion relates. What is prominent is that the opening words state “the evidence does not sustain”. The second “not” is plainly erroneous and should be removed as an errata or slip.

20. Fourthly, to read the words “may not” in the second sentence of the extracted passage at [14] above, would result in the conclusion that the court had not determined the question. Those words are plainly intended to have the usage “shall not” or “are not”.

21. I will now address the disputed matters arising from the parties’ supplementary submissions and further supplementary submissions seriatim.

NON-ECONOMIC LOSS

22. The Court has earlier extracted [543] – [549] of the primary judgment concerning non-economic loss. I will not repeat them for the purpose of the analysis under this heading but would add two paragraphs from the same section of the primary judgment:

“541. The plaintiff is 61 years of age at the time of judgment. She had a pre-existing osteoarthritis in her left knee which would, based on my earlier findings, at some point of time required a total knee replacement.

542. There appears to have been limited restrictions on her social life prior to the incident with some occasional restrictions on her working life.”

23. In supplementary submissions the plaintiff returned to her original submission seeking 35% of a most extreme case to take account for the pain and suffering from the knee infection and subsequent surgery. The Court did not accept that position in the primary judgment based upon the plaintiff not having established causation in relation to the knee infection in May 2018 and subsequent operation. The Court did reach a conclusion of 25% of the most extreme case, but nonetheless invited submissions as to that amount before finally passing upon the matter. It is surprising that the plaintiff would have seen that as an invitation to return to her original position.

24. The dissent by senior counsel for the plaintiff in supplementary submissions and further supplementary submissions into further merit-based argument on the issue of causation and non-economic loss traverses the Court’s judgment on the question and should not have been made.

25. The first defendant made the following supplementary submissions in relation to non-economic loss:

“5. Taking into account the above findings, the Court has assessed damages for noneconomic loss at 25% of a most extreme case. [J548]

6. This is an appropriate assessment particularly give[n] the plaintiff's age. The plaintiff was born on 10 May 1961 and was 57 at the time of the accident and is now 62.

7. The age of a plaintiff effects the assessment of non-economic loss under the Civil Liability Act. In Reece v Reece (1994) 19 MVR 103, the Court of Appeal remarked upon the need, when assessing, on a proportionate basis, the severity of injury, to consider the age of a plaintiff and the likely length of the period over which the pain and suffering of progressive disability would be suffered. The court held that the consequence of particular injuries were likely to be more severe in the case of a younger person than that of an elderly plaintiff who had a much shorter period of life expectancy.

8. Copy of the judgment in Reece v Reece (1994) 19 MVR 103 is attached.

9. Damages for non-economic loss is assessed at $49,500.00.”

26. The Court agrees with the submission of the first defendant and determines that the percentage for the award for non-economic loss shall be 25% of the most extreme case.

27. Under the Civil Liability (Non-economic Loss) Amendment Order 2024 (NSW) the maximum amount which can be awarded for non-economic loss from 1 October 2024 is $761,500.

28. Accordingly, pursuant to s 16(3) of the Civil Liability Act 2002 (NSW), the Court awards the plaintiff damages of $49,500 for non-economic loss.

PAST ECONOMIC LOSS

29. The primary judgment came to the following conclusion regarding past economic loss:

“553. The first defendant’s submissions were again predicated upon a contention that there was not a causal relationship between the tortious conduct of the defendants and the need for a total knee replacement surgery. That submission has been rejected and accordingly the four-month period used to calculate past economic loss by the defendants must be rejected.

554. Rather, the period should be based upon the considerations of the Court with respect to non-economic loss and the earlier discussion of damages in this judgment.

555. It is true that the average hours worked by the plaintiff at the Centre was 20.5 hours with an earning average of $498.22 net.

556. However, the plaintiff had been promised full time employment which accounts for the 30 hours a week calculator used by the plaintiff. Similarly, average hours earning would not seem applicable on that different basis for engagement and accordingly, the relevant award provisions identified by the plaintiff should operate upon the calculations.

557. There is, however, some further considerations which diminish the amount payable for past economic loss as follows:

(1) The plaintiff would have required a substantial amount of time off work beyond her sick leave entitlements in the aftermath of the injury and, as I have found, may have needed a total knee replacement in any event between the date of the incident and the date of the hearing of this matter.

(2) I accept the concession by the second defendant that the plaintiff is no longer fit to work as a cook on a full-time basis. I do not accept the alternative position advanced by the second defendant that she may have been able to do some part-time cooking similar to that which she undertook in the Centre. However, the video surveillance material does indicate that the plaintiff would have been available to undertake some medial work and as Dr Shatwell opined there would seem to be a basis upon which the plaintiff may return to sedentary administrative tasks (but, in my view, not sales tasks). This expectation for work does need to be modified by virtue of the difficulties of the plaintiff obtaining duties at her age and with some disability but there is at least a prospect for work in that respect.

558. I find that there is a basis for an allowance for past-economic loss. That loss will be calculated on the basis on the above considerations. The parties should either bring in Short Minutes of Order representing an agreed quantification in that respect or alternatively short submissions as to the same based upon the above reasons.”

30. In closing written submissions the plaintiff proposed the amount of $260,655.85. The plaintiff submitted the following in relation to that calculation:

“229. It is calculated by reference to the Children's Services Award 200 and determinations made from time to time by the Fair Work Commission.

230. These are publicly available documents and the Court should require the first defendant to admit the mathematical accuracy of the calculation.

231. On 03.04.2014 the solicitors for the plaintiff wrote to the solicitors for the first defendant inviting them to agree, mathematically, without prejudice to their right to contest any entitlement various mathematical calculations including the calculation for past economic loss. The calculation was made on the basis of 30 hours per week and quantified in accordance with the relevant parts of clauses 3, 4 and Schedule B of the Children's Services Award 2010 and annual wage reviews pursuant to Section 285 of the Fair Work Act 2009.

232. The calculation was made upon the basis of a 30 hour week. However, the plaintiff would have had to take a substantial amount of time off work and beyond the time covered by any sick leave entitlements if the Court finds that she would have needed the total knee replacement in any event at some time between the date of the accident and the date of hearing.”

31. The plaintiff’s closing written submissions in reply, filed on 29 April 2024, (“the plaintiff’s reply submissions”) contained a schedule showing the breakdown of how the figure of $260,655.85 was calculated according to the appropriate ‘Annual Wage Review’ for each year under the Children’s services Award 2010.

32. In supplementary submissions, the plaintiff, inter alia, submitted the following

“The postulated figure in the Plaintiff's written submissions at paragraph 228 was $260,655.86. Allowing for the probability that she would have obtained employment for 30 hours per week but would have had to take some time off work for surgery a percentage reduction is the best a Court could do. The Plaintiff's submission is that she should be awarded 90% of the claimed amount, namely, $234,500.”

33. The first defendant, in supplementary submissions, made the following submissions on past economic loss:

“20. Based on the Court's findings the plaintiff should be allowed economic loss from the date of the incident (1 February 2016) to the date of the onset of the knee infection (May 2018) at which time there was a significant deterioration.

21. A review of the Plaintiff's pre-injury early earnings discloses an average 20.5 hours and earning an average of $489.22 net. That equates to $715.93 per week based on 30 hours.

22. The Court should allow 1/2/16- 30/5/18 (121 weeks) = $86,627.53.”

34. The second defendant, in supplementary submissions, made the following submissions on past economic loss:

“6. The average hours worked by the Plaintiff at the Centre was 20.5 hours with an earning average of $498.22 net (see [555]) which appears to be a typo and the correct figure is $489.22. Whilst the Second Defendant acknowledges that the Plaintiff had been promised full time employment (which may have amounted to 30 hours per week) (see [556]), she never worked this number of hours ([551(5)]. Further, the Court found at [557] that:

(i) the Plaintiff would have required a substantial amount of time off work beyond her sick leave entitlements due to the inevitable total knee replacement; and

(ii) the video surveillance material does indicate that the Plaintiff would have been available to undertake some [menial]) work and as Dr Shatwell opined there would seem to be a basis upon which the Plaintiff may return to sedentary administrative tasks.

7. In light of such findings, and also having regard to the Plaintiff’s comorbidities, the Second Defendant submits that the figure of 20.5 hours is an appropriate compromise for the Plaintiff’s pre-injury earnings and duly reflects the fact that there would have been significant periods of time whereby the Plaintiff was not working and not earning wages.

8. As such, noting that the incident occurred on 1 February 2016, between that time and the date of these submissions (7 February 2025), 470.4 weeks have lapsed. This equates to a total past economic loss of $230,129.09 ($489.22 x 470.4), with applicable superannuation of $25,314.20 (at 11%). Further, the Fox v Wood component amounts to $31,541.

9. Therefore, aggregating past economic loss, superannuation and Fox v Wood, the total is 286,984.29. In her submissions, the Plaintiff submits at [3(viii)(10)] that she ought to be awarded 90% of the claimed amount. The Second Defendant contends that this figure is inflated given the significant qualifying factors noted at [6] to [7] above, and that 80% better reflects the underlying findings. This would result in a total of $229,587.43.”

35. If fully accepted, the second defendant’s contention that damages for past economic loss should only be calculated using 20.5 hours rather than 30 hours because: (1) “she never worked this number of hours”, (2) she would have required substantial time off work “due to the inevitable total knee replacement”, and (3) the video surveillance material indicated that she “would have been available to undertake [menial] work”, would not, in my view, fairly compensate the plaintiff.

36. A plaintiff “is not to be compensated for loss of earnings but for loss of earning capacity”: Arthur Robinson (Grafton) Pty Ltd v Carter (1968); [1968] HCA 9; 122 CLR 649 at 658. In my view, the calculation of past economic loss should proceed on the basis of the employment the uninjured plaintiff would have obtained, namely, employment for 30 hours per week. Both the plaintiff and the first defendant agree in that respect.

37. The schedule of calculation in the plaintiff’s reply submissions accords with the primary judgment in that it uses the appropriate award rates during the appropriate time periods. Furthermore, the calculation is made on the basis of the plaintiff receiving remuneration for 30 hours per week.

38. I agree with the submissions of the plaintiff that a percentage reduction to account for the probability that the plaintiff would have taken several months off work for the knee replacement surgery at some point in the future, regardless of the incident, is an appropriate method to calculate past economic loss. I also note that approach makes allowance for some of the concerns raised by the second defendant.

39. Specifically, senior counsel for the plaintiff submitted the plaintiff should be awarded 90% of the claimed amount, namely, $234,500.

40. I agree with that approach and, in the absence of any challenge to the plaintiff’s calculations as to quantum, I make an award of past economic loss in those terms.

FUTURE ECONOMIC LOSS

41. The primary judgment held the following in relation to future economic loss:

“574. The considerations the Court has brought to bear with respect to past economic loss significantly overlap with the consideration of this head of damages. Accordingly, the provision I have made for supplementary submissions with respect to past-economic loss shall apply in equal measure with respect to this head of damages.”

42. The plaintiff’s closing written submissions were extracted in the primary judgment (at [572]).

43. In supplementary submissions, the plaintiff, inter alia, made the following submissions on future economic loss:

“19. The Court made the finding:

"It would have been of much greater assistance to the Court for the First Defendant to have taken the usual course of issuing a subpoena for the production of financial records to determine whether or not the Plaintiff actually earned any income from this hobby."

20. That is an important observation because the onus is on the First Defendant to prove the extent of any alleged residual earning capacity.

21. The First Defendant did not submit an alternative calculation to that submitted by the Plaintiff but simply made the bald assertion that there should be no allowance for future economic loss.

22. The Plaintiff's figure was $212,990.96.

23. The assumption about the Plaintiff's most likely future circumstances but for the injury have been identified, namely employment for 30 hours per week.

24. If allowance is made for some residual earning capacity the Plaintiff's submission is that 90% of the Plaintiff's figure should be awarded, namely $190,000.00.”

44. The first defendant made the following supplementary submissions on future economic loss:

“23. From May 2018 and into the future the Court must assess economic loss based on the findings that:

(a) In May 2018 her condition significantly deteriorated as a result of the infection which was unrelated to the incident. [J524 and J543]

(b) The plaintiff would have ultimately required a total knee replacement at some stage in any event as a result of her pre-existing pathology. [J 522]

(c) The plaintiff may have required a knee replacement in any event between the date of the incident and the date of the hearing. [J557(2)].

24. The Court would allow a further amount by way of a buffer for this past period (from May 2018 to date) and the into the future of $75,000.00.”

45. The second defendant made the following supplementary submissions on future economic loss:

“10. As noted in the Decision at [572], the evidence indicates that but for the injury, the Plaintiff would have been a full-time employee of the First Defendant until normal retiring age (67) ([572(2)-(3)]. At the relevant award rate, she would have been earning $688.40 net per week. This figure has not been increased as it provides a discount in respect of unpaid time off in the future; possible unemployment should the Centre close; and the impact of co-morbidities, as discounted by 15% for vicissitudes (see [572(4)].

11. The Plaintiff is currently 61 years of age (see [572(13)]).

12. The Plaintiff’s figure for future economic loss is $688.44 x 271.4, being six years on the five percent table, less 15% for vicissitudes, which equals $158,816.25 and consequential superannuation at the rate determined by His Honour, 12.87% (see [575], equalling $20,439.65). The total therefore is $179,255.90.”

46. There seems to be no dispute that the amount of $688.40 net per week is the correct award rate for the plaintiff for the calculation of future economic loss. Both the plaintiff and the second defendant use that figure in their submissions.

47. When future economic loss is assessed as a lump sum, the present value of that future economic loss is to be determined by adopting the prescribed discount rate: s 14, Civil Liability Act. This rate is currently 5%: s 14(2)(b), Civil Liability Act.

48. As submitted by the second defendant, it is appropriate to use the 5 percent table to calculate future economic loss. This table is an actuarial tool published by Furzer Crestani that is used to calculate a lump sum for future economic loss based off how many years remain until a plaintiff retires.

49. The second defendant submitted that the plaintiff has 6 years remaining before reaching 67, however, that calculation was made based on the date the supplementary submissions were filed on 7 February 2025.

50. As past economic loss has been calculated until April 2024, it is appropriate to calculate future economic loss from that time. In April 2024, the plaintiff was 60 years of age. As such, the correct figure for 7 years of the 5 percent table is 309.4.

51. The sum of $688.40 multiplied by 309.4 is $212,990.

52. That figure then requires further discount for vicissitudes. The reduction that would normally be imposed is 15%, which seems to accord with the position of the parties so far as they have turned their minds to that question.

53. After the 15% discount is applied, the total amount of damages for future economic loss is $181,042. I make that award accordingly.

54. Although the plaintiff raised both figures of $212,990.96 and $181,042.31 in closing written submissions, in supplementary submissions her final position seemed to be that the figure of $212,990.96 was correct or that “if an allowance is made for some residual earning capacity the plaintiff’s submission is that 90% of the plaintiff’s figure should be awarded, namely $190,000.00”

55. The plaintiff’s submissions are unclear, inconsistent and cannot be reconciled. I also note, in that respect, that 90% of $212,990.96 is $191,691.86 not $190,000.

56. Furthermore, I reject the first defendant’s submission to award the plaintiff $75,000 as a “buffer” for “this past period (From May 2018 to date) and the future”. This approach is similarly unclear, does not address matters contained in s 14 of the Civil Liability Act, and seems to lack any credibility.

57. In the result, the Court awards the plaintiff damages of $181,042 for future economic loss.

SUPERANNUATION

Past loss of superannuation

58. In relation to past loss of superannuation, the primary judgment was as follows:

“Past loss of superannuation

559. In relation to the past loss of superannuation the plaintiff submitted that the past superannuation in respect of the award for past economic loss is $34,719.36.  The first defendant did not make any submissions, in this respect, which the plaintiff highlighted in reply submissions.

Consideration

560. There should be an allowance for damages for past loss of superannuation which will be calculated on the basis of the methodology employed by the plaintiff, adjusted having regard to the award for past economic loss.

561. The quantification of this amount shall await determination of the award for past economic loss.”

59. In supplementary submissions the plaintiff submitted the following:

“14. The finding of the Court was that the Plaintiff's methodology should be accepted.

15. In the Plaintiff's written submissions the amount submitted was $34,719.36. However, allowing for the 10% reduction in the award for past loss of earning capacity. That figure also should be reduced by the same 10% producing an award for past loss of superannuation in the amount of $31,250.00.”

(footnotes omitted)

60. In supplementary submissions the first defendant submitted the following:

“26. The superannuation components will depend on the Court's findings as to past and future economic loss and should be calculated by the parties as part of any final orders.”

61. In supplementary submissions the second defendant proposed past loss of superannuation should be calculated at 11% of the amount they submitted was the correct figure to be awarded for past economic loss. I note I have already rejected the second defendant’s figure in this respect.

62. I agree with the submission advanced by the plaintiff that a further 10% reduction needs to be applied to align with the reduction of the plaintiff’s damages awarded for past economic loss.

63. Before pronouncing the sum of damages awarded to the plaintiff for past loss of superannuation, it is appropriate to mention s 15C of the Civil Liability Act.

64. Section 15C of the Civil Liability Act provides as follows:

“15C Damages for loss of superannuation entitlements

(1) The maximum amount of damages that may be awarded for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable (in accordance with this Part) for the deprivation or impairment of the earning capacity on which the entitlement to those contributions is based.

(2) The relevant percentage is the percentage of earnings that is the minimum percentage required by law to be paid as employer superannuation contributions.”

65. I note that none of the parties, in any of their submissions, made reference to s 15C of the Civil Liability Act.

66. The plaintiff’s suggestion that the Court should make an award of $31,250 in consideration of the total amount ultimately awarded for past economic loss being $234,500 cannot be correct in the light of s 15C of the Civil Liability Act. This is because $31,250 is 13% of $234,500 which is much higher than “the minimum percentage required by law to be paid as employer superannuation contributions”: s 15C(2) of the Civil Liability Act.

67. As of 1 July 2024, the Commonwealth Government set the minimum superannuation guarantee rate employers must pay employees as 11.5%. ^[2]

    2. See r 5(3A) Superannuation (CSS) (Superannuation Guarantee) Regulations 2008 (Cth) and s 19(2) Superannuation Guarantee (Administration) Act 1992.

68. In the result, the past loss of superannuation will be calculated at 11.5% of past economic loss.

69. The final sum awarded for past loss of superannuation should be calculated and reflected in Short Minutes of Order which the Court will direct be filed.

Future loss of superannuation

70. In relation to future loss of superannuation, the primary judgment was as follows:

“Future loss of superannuation

575. In relation to future loss of superannuation, the plaintiff submitted it is calculated at 12.87% of the claim for future economic loss: $23,300.15. The first defendant, as earlier mentioned, did not make any submissions on the future loss of superannuation.

Consideration

576. There shall be an award for future loss of superannuation calculated upon the methodology employed by the plaintiff but subject to the conclusion as to future economic loss.”

71. In relation to future loss of superannuation, the Court agrees with the procedure proposed by the first defendant in supplementary submissions that the calculation will be undertaken as part of the parties providing a final Short Minutes of Order reflecting this judgment.

72. I confirm future loss of superannuation will be calculated at 12.87% in accordance with the Court’s finding in the primary judgment (at [575] – [576]).

FOX v WOOD

73. The Court agrees with the procedure proposed by the first defendant that the calculation of the Fox v Wood (1981) CLR 438 (“Fox v Wood”) component of damages awarded to the plaintiff will be undertaken as part of the parties providing a final Short Minutes of Order reflecting this judgment.

PAST TREATMENT EXPENSES

74. In the primary judgment (at [564]), I made an award of $83,288.46 in favour of the plaintiff for past treatment expenses.

75. In supplementary submissions, the first defendant contended that the amount claimed for past treatment expenses should, in fact, be $82,288.46 instead of $83,288.46. This submission was based upon a schedule provided at the hearing by the plaintiff titled “PLAINTIFF’S SCHEDULE OF OUT OF POCKET EXPENSES”. That schedule, which the first defendant annexed to their supplementary submissions, lists the “total amount of fees” for “Medicare Notice of Charge” as $9,446.55, “Expenses as paid by the Workers Compensation Insurer” as $73,841.91 and the sum “total” mistakenly as $82,288.46. The correct addition of $9,446.55 and $73,841.91 is in fact $83,288.46.

76. In the result, the Court awards the plaintiff damages of $83,288.46 for past treatment expenses.

PAST OUT-OF-POCKET EXPENSES

77. The plaintiff claimed an amount of $73,841.91 for past out-of-pocket expenses.

78. The first defendant submitted that the plaintiff’s claim for past treatment and past out-of-pocket expenses are “essentially the same”.

79. In relation to past treatment expenses, the primary judgment was as follows:

“562. In relation to past treatment expenses, the plaintiff submitted that the Health Insurance Commission has paid $9,446.55 for the plaintiff's treatment and the workers compensation insurer has paid $73,841.91 by way of past treatment expenses. These should be added to the verdict against the first defendant in addition because the workers compensation insurer would not pay for the surgery and it had to be done at a public hospital. Those costs and the related treatment thereafter totalled $9,446.55. Accordingly, the award for past treatment expenses should be $83,288.46.

563. The first defendant submitted that “it would be medical expenses for a period of four months and the like”.

Consideration

564. I agree with the submissions advanced by the plaintiff and will make an award for past treatment expenses as proposed by the plaintiff.”

80. In relation to past out-of-pocket expenses, the primary judgment was as follows:

“569. In relation to past-out-of-pocket expenses, the plaintiff submitted that these have been paid by the workers compensation insurer: $73,841.91.  The first defendant confirmed this and submitted “The workers compensation insurer has paid past out-of-pocket expenses. The plaintiff should be allowed out of pocket expenses that relate to the lateral tibial plateau fracture only and treatment in the first 4-month period. The joint conclave report of the orthopaedic surgeons confirms that the plaintiff requires no further investigations or ongoing treatment.”

570. However, in reply, the plaintiff submitted the following:

(1) These submissions are predicated upon the assumption that the Court does not make a finding that the total knee replacement was not causally related to the first defendant's tortious conduct. If the Court finds that it was then the out-of-pocket expenses are those that have been paid by the workers compensation insurer who by its conduct has accepted the causal connection. The final figure will have to await the delivery of judgment because treatment expenses and weekly payments are continuing.

Consideration

571. I agree that an award for past-out-of-pocket expenses should be made and calculated on the basis of the first defendant’s tortious conduct. I also agree with the plaintiff that the final figure, in this respect, should await the delivery of the judgment.”

81. The plaintiff’s supplementary submissions were as follows:

“Past Treatment Expenses

16. The Court awarded the amount of $83,288.46.36

Past Out-of-Pocket Expenses

17. The agreed figure is $73,841.91.

18. For the reasons explained in the submissions in relation to non-economic loss the Plaintiff submits that the final judgment of the Court should be varied, if necessary, to include the infection and further knee replacement as being causally related to the tortious conduct for the reasons earlier explained with the result that the past out-of-pocket expenses in the amount of $73,841.91 should be allowed.”

82. In my view, the plaintiff’s approach involved double counting by claiming for the amount of $73,841.91 paid by the Workers Compensation Insurer, twice. As the first defendant submitted, the submissions of the plaintiff, in this respect, are “at best misleading”.

83. No explanation was provided by the plaintiff as to the basis upon which this further amount should be awarded when the figure claimed for past out-of-pocket expenses seems to derive entirely from treatment expenses of exactly the same amount. Hence, there is no basis for any award for past out-of-pocket expenses in addition to the award for past treatment expenses.

84. The Court makes no award of damages to the plaintiff for past out-of-pocket expenses.

FUTURE TREATMENT EXPENSES

85. In the primary judgment (at [579]), I made an award of $150,000 in favour of the plaintiff for future treatment expenses.

86. In the first defendant’s supplementary submission, senior counsel, Mr N Polin, was critical of the primary judgment and stated the following in relation to future treatment expenses:

“16. The Court mistakenly noted at J 578 that the first defendant made no submissions on future treatment expenses.

17. At paragraph 108 of its submissions the first defendant submitted - "The joint conclave report of the Orthopaedic Surgeons confirms that the plaintiff requires no further investigations or ongoing treatment." [footnote: CB 511 paragraph 3]

18. The Court would be bound by this joint concession by the Orthopaedic surgeons, after conclave and after no cross examination on the issue.

19. There should be no allowance for future treatment expenses.”

87. For clarity, I have extracted [106] to [108] of the first defendant’s closing written submissions as well as the proceeding heading. These were as follows:

“Out-of-pocket expenses

106. The workers compensation insurer has paid past out-of-pocket expenses.

107. The plaintiff should be allowed out of pocket expenses that relate to the lateral tibial plateau fracture only and treatment in the first 4-month period.

108. The joint conclave report of the Orthopaedic Surgeons confirms that the plaintiff requires no further investigations or ongoing treatment. [footnote: CB 511 paragraph 3]”

88. The first defendant’s contention that [108] of their closing written submissions should have been read by the Court as a submission opposing the award of damages for future treatment expenses is deficient at three levels.

89. First, while future treatment expenses are mentioned, the reference is made under a heading “out-of-pocket expenses” and without any real expansion on the position. The first defendant was otherwise scrupulous in categorising subject areas through their submissions using headings.

90. Secondly, the submission placed reliance upon evidence which clearly did not support the proposition advanced. The footnote reference to [108] of the first defendant’s closing written submissions and [17] of their supplementary submissions read “CB 511 paragraph 3”. Page 511 of the court books in this proceeding contained a “Medical Assessment Certificate” issued by Dr Yiu-Key Ho and not “the joint conclave report of the Orthopaedic Surgeons”.

91. The third difficulty is that, if recourse is had to the opinions of the orthopaedic surgeons in their Joint Report on future treatment (and expenses), the responses do not bear out the proposition advanced by the first defendant in [108] of their closing written submissions and [17] of their supplementary submissions that “the plaintiff requires no further investigations or ongoing treatment".

92. Questions (c) and (l) of the Joint Orthopaedic Surgeons’ Report bear upon the statement in [108] of the first defendant’s closing written submissions, and are as follows:

“(c) Did the injuries the plaintiff suffered in her fall on 1 February 2016 resolve, and if so when?

Dr Endrey-Walder

The Plaintiff’s severe ongoing pain had not resolved and is still plaguing her on a daily basis.

Professor Shatwell

There may have been a minor exacerbation of symptoms of osteoarthritis from the injury for a short period.

Dr Machart

No. She continued to suffer pain, which was compounded by the preinjury osteoarthritis. It is difficult to determine if and when the soft tissue injury ended.

…

(l) What are the plaintiff’s future treatment needs and are any of these as a direct result of her fall on 1 February 2016?

Dr Endrey-Walder

The Plaintiff will require painkillers in the future.

Professor Shatwell

The Plaintiff’s future treatment needs may involve revision surgery for the left knee replacement if this fails. The need for any future treatment is not a direct result of the fall of 1 February 2016.

Dr Machart

Not as a result of the fall. As a result of the poorly functioning knee replacement, the ultimate existence of arthritis and the underlying preexisting osteoarthritis.”

93. The responses of the Orthopaedic Surgeons need to be viewed in the light of the primary judgment which found the incident “caused a material aggravation of the pre-existing osteoarthritis in the plaintiff’s left knee resulting in a total knee replacement surgery on 10 August 2016”. The Orthopaedic surgeons all agree there is a need for future treatment for the plaintiff, however, Professor Shatwell and Dr Machart deny the incident was the cause of that need. The Court in its primary judgment clearly rejected that view.

94. In the result, the opinions of Professor Shatwell and Dr Machart are, to the extent of the inconsistency, diminished. The experts nonetheless talked about the plaintiff’s future treatment which does, even in the light of their original opinions, suggest the need for ongoing treatment at various levels to the extent of that finding.

95. In response to question (c) of the Joint Orthopaedic Surgeons’ Report, Dr Endrey-Walder stated the plaintiff had “severe ongoing pain” which had “not resolved and is still plaguing her on a daily basis”. Dr Machart stated the plaintiff “continued to suffer pain” and “it is difficult to determine if and when the soft tissue injury ended”.

96. In response to question (I) of the Joint Orthopaedic Surgeons’ Report, Professor Shatwell stated the plaintiff’s “future treatment needs may involve revision surgery for the left knee replacement if this fails”, while Dr Machart inferred the need for future treatment by stating that future treatment was not needed “as a result of the fall”, rather, it was needed as “a result of the poorly functioning knee replacement, the ultimate existence of arthritis and the underlying preexisting osteoarthritis”. Dr Endrey-Walder acknowledged the plaintiffs need for medications into the future.

97. Given the findings of the primary judgment, any estimates given by the orthopaedic surgeons, as to the need for future treatment, must be amplified.

98. In the result, the Court maintains its ruling in the primary judgment and awards the plaintiff damages of $150,000 for future treatment expenses.

S 151Z AND APPORTIONMENT

99. With respect to s 151Z of the Workers Compensation Act 1987 (NSW) and apportionment, the primary judgment found the following (at [532-533]):

“532. Broadly speaking, I accept the approach preferred by the second defendant with respect to the operation of s 151Z(1) but would be prepared to receive further submissions with respect to the authorities referred to in that respect.

533. I shall make a provision for submissions as proposed by the second defendant with respect to s 151Z which will incorporate any submissions as to cross-claims. However, with that approach in mind, and without finally ruling on the question, it appears to me that, having regard to my findings as to liability, there would be, prima facie, a proper basis to find 70% liability against the first defendant and 30% liability against the second defendant.”

100. In supplementary submissions, the plaintiff made the following submissions in this respect:

“30. The Court has made an evaluative assessment of 70% liability against the First Defendant and 30% liability against the Second Defendant.

31. This is an evaluative judgment based upon the whole of the circumstances about which findings have been made.

32. The Plaintiff does not submit that the Court has failed to take into account relevant matters or taken into account irrelevant matters or on any other basis that the evaluative judgment is open to challenge in accordance with House v. The King principles. In the result and making the calculation up to and including the date of the delivery of judgment on 27 November 2024…”

(footnotes omitted)

101. In supplementary submissions, the first defendant made the following submissions in this respect:

“1. The Court has found employer liability at 30%. [J533]

2. Section 151Z calculations will depend on the Court's precise findings as to damages and should be calculated by the parties as part of any final orders.”

102. In supplementary submissions, the second defendant made the following submissions in this respect:

“14. On the question of s.151Z, at [532] his Honour broadly adopted the Second Defendant’s construction of this provision in light of recent jurisprudence. The Second Defendant submits that, in circumstances whereby the First and Second Defendants have been held liable and s.151Z(2)(e) is not engaged, then s.151Z(2)(c)-(d) apply. This permits the Court to determine apportionment, irrespective of the operation of s.5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) by using the mechanism of s 151Z(2).

15. As noted at [3(vii)] above, in circumstances whereby the Court is inviting further submissions on the question of apportionment, the Second Defendant notes as follows. The Decision confirms the significant extent of control and management the First Defendant exercised over the Plaintiff. To this end, the First Defendant “had complete control of the physical features of the premises including the floor surface” and “had control of the system of work under which the plaintiff was required to work” ([312]). Further, the Second Defendant “did not know and had no means of knowing that the floor in the kitchen did not comply with the Australian Standard for commercial kitchens” ([314]). The Decision also notes that the scope of the Second Defendant’s non-delegable duty of care was generally confined in the context of the prevailing circumstances in this matter. At [317], his Honour particularly places emphasis on the Second Defendant’s failure to ensure that mats were in place at the centre so as to address any inadvertent spillage.

16. In light of the above, and subject to the comment at [3(vii)] above, the Second Defendant respectfully submits that the Court’s proposed apportionment of 30% liability ought to be reduced to 25%.”

103. Whilst I agree with the first defendant that the final calculation for apportionment under s 151Z of the Workers Compensation Act should await the Court’s precise findings as to damages and, therefore, be the subject of Short Minutes of Order, there is no basis established, in my view, for the Court to make other than a final determination of the appropriate apportionment.

104. The factors identified by the second defendant as varying the amount of apportionment were already taken into account in the Court’s reasoning on this question and warrant, in my view, no change in the preliminary view expressed by the Court.

105. In the result, the Court determines 70% liability against the first defendant and 30% liability against the second defendant.

CROSS CLAIMS

106. The second defendant made a submission that cross claims should be dismissed with no orders as to costs.

107. The basis for that submission was as follows:

“17. Finally, as for the cross-claims, in light of his Honour’s findings, these can duly be disposed of. With regard to the First Defendant’s cross-claim, this has no work to do in light of the Court’s position on apportionment as the First Defendant has been ordered to pay significant damages which have been discounted by way of verdict (whether it be 70% or 75%). Similarly, with regard to the Second Defendant’s cross-claim, the relief sought has already been dealt with by way of s.151A of the Workers Compensation Act 1987 (NSW), as given the Plaintiff’s verdict against the Second Defendant, the amount of weekly payments of compensation already paid in respect of the injury concerned (which amounts to $323,711.97, see Plaintiff’s Submissions at [27]) is to be deducted from the damages award. Further, as there has been no finding of contributory negligence (see [585(9)]), the Court need not undertake any discounting exercise.

18. As such, the cross-claims ought to be dismissed with no order as to costs.”

108. I agree with that submission and will make orders accordingly.

COSTS

109. In supplementary submissions, the plaintiff sought an order against the first defendant for ordinary costs until 2 February 2024, and thereafter, indemnity costs on the basis that the plaintiff “made an Offer of Compromise and… has obtained a result more favourable to her than her offer”. The first defendant made no submissions on costs.

110. As earlier mentioned in this judgment, the communication provided an opportunity to the parties to amend their supplementary submissions and in particular stated the following:

“if a party has made no submission on a particular topic responsive to the other parties submission or the submission has not been the subject of any development beyond a bare statement of opposition, then the court will proceed upon the basis that the party either has no submission on the topic or does not intend to develop any justification for the position adopted.…

The Court will make provision for the determination of costs in its supplementary judgment although it may be noted that the plaintiff’s position as to indemnity costs presently does not seem to be supported by any evidence.”

111. The plaintiff did not respond to that invitation nor did she provide any evidence of an offer of compromise. The first defendant also failed to provide any submissions as to costs in their further supplementary submissions.

112. Accordingly, I find there is no proper basis for the Court to award indemnity costs from 2 February 2024 against the first defendant, as there appears to be no evidence to support the plaintiffs claim that the plaintiff made an offer of compromise and obtained a result in the primary judgment more favourable to her than her offer.

113. In the absence of any submissions by the first defendant as to costs, the Court considers that the matter should be resolved on the basis that costs should follow the event. There is nothing suggested that would involve the court engaging in an exercise of proportionality.

114. I also note it is common ground that the second defendant’s costs are regulated by statute.

115. As a result, I make an award for costs against the first defendant on an ordinary basis for the proceedings.

INTEREST

116. The first defendant made bare submissions that the Court should not make any allowance for interest without any justification for the submissions or rejoinder to the plaintiff’s position and, in the circumstances, it effectively amounts to no submission at all.

117. On the basis of no submissions being put to the contrary by the first defendant, I will proceed to consider the question of interest having regard to the supplementary submissions advanced by the plaintiff.

118. The plaintiff made the following supplementary submissions on interest:

“4. The Court has a discretion to award interest "to be calculated at such rate as the court thinks fit'. [footnote Civil Procedure Act 2005 section 100]

5. The discretion is rarely refused. [footnote: Falkner v. Bourke (1990) 19 NSWLR 574]

6. The Court cannot award interest on damages for non-economic loss. [footnote: Civil Liability Act [(2005)] section 18]

7. In determining interest on past economic loss payments of workers compensation must be taken into account. Between the date of accident and the date of judgment on 27.11.2024 the Plaintiff received $151,500 in net workers compensation payments so that the difference between the net workers compensation payments received and the past economic loss for the period from the date of the accident up until the time of judgment was in the total amount of $234,500 making a difference of $83,000.

8. Some of that loss occurred shortly after the accident and some of it occurred shortly before hearing.

9. In addition, there has been a significant variation in interest rates for the purposes s.100 of the Civil Procedure Act 2005 varying from very low rates during the COVID years to very high rates recently.

10. Quantifying the interest "should always be approached in a broad and practical way". [footnote: Gibbs J in Cullen v. Trappe/I(1980) 146 CLR 1 at 22]

11. Some guidance can be obtained from the case law relating to the way in which an award of interest should be made when interest was able to be awarded on what was then called general damages.

12. In Metropolitan Meat Industry Board v. Williams [(1991) 24 NSWLR 54 at [59)(c)] the view that was taken was that to allow for the length of time over which the entitlement to interest was accruing the appropriate course was to take half the rate.

13. Adopting that approach in this case the average interest rate over the eight years is about 6% so 3% should be used which would give a figure for interest on past economic loss against the First Defendant in the amount of $20,160.”

119. In the absence of any contradictory submissions by the defendants and acknowledging the plaintiff’s reliance on s 18 of the Civil Liability Act and s 100 of the Civil Procedure Act 2005 (NSW), I consider that the plaintiff’s submissions may be accepted.

120. In the result, in relation to the first defendant, interest will be payable at 3% on damages for past economic loss (I note s 18(1)(a) of the Civil Liability Act precludes the payment of interest on damages for non-economic loss). This amount will be calculated as part of the parties providing a final Short Minutes of Order the Court reflecting this judgment.

121. The second defendant made the following supplementary submissions in relation to the payment of interest:

“19. On the question of interest, pursuant to s 151M of the Workers Compensation Act 1987 (NSW), the Second Defendant submits that the Plaintiff does not engage s.151M(4) (as no information was provided to the Second Defendant in order to make any proper assessment) and therefore the Plaintiff has no such right to interest on damages as against it.”

122. Section 151M of the Workers Compensation Act is as follows:

“151M   Payment of interest

(1) Limited statutory entitlement A plaintiff has only such right to interest on damages as is conferred by this section.

(2), (3)   (Repealed)

(4) 

(a)  Interest is not payable (and a court cannot order the payment of interest) on damages unless—

(i)  information that would enable a proper assessment of the plaintiff’s claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff’s full entitlement to all damages of any kind but has not made such an offer, or

(ii)  the defendant has had a reasonable opportunity to make a revised offer of settlement (where it would be appropriate to do so) in the light of further information given by the plaintiff that would enable a proper assessment of the plaintiff’s full entitlement to all damages of any kind but has not made such an offer, or

(iii)  the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the court (without the addition of any interest) is more than 20% higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made.

(b)  The highest amount offered by the defendant is not unreasonable if, when the offer was made, the defendant was not able to make a reasonable assessment of the plaintiff’s full entitlement to all damages of any kind.

(c)  For the purposes of this subsection, an offer of settlement must be in writing.

(5) Calculation of interest If a court is satisfied that interest is payable under subsection (4) on damages—

(a)  the amount of interest is to be calculated for the period from the date of the death of or injury to the worker until the date on which the court determines the damages, and

(b)  the amount of interest is to be calculated in accordance with the principles ordinarily applied by the court for that purpose, subject to this section.

(6) Rate of interest The rate of interest to be used in any such calculation is three-quarters of the rate prescribed for the purposes of section 101 of the Civil Procedure Act 2005 for the period concerned.

(7) Judgment debts Nothing in this section affects the payment of interest on a debt under a judgment or order of a court.”

123. Subsection 151M(1) of the Workers Compensation Act provides that the plaintiff has “limited statutory entitlement” and “has only such right to interest on damage as is conferred by this section”.

124. Patten AJ considered s 151M of the Workers Compensation Act in Andrew Goodman v Impact Hire Australia Pty Limited & Anor [2009] NSWSC 941. His Honour stated the following (at [14] – [18]):

“14 Mr Catsanos submitted that I should follow the decision of Studdert J in Corbett v Toll Stevedoring Pty Ltd & Ors [2007] NSWSC 749 and decline to order interest against Impact. In that case, which bears some similarity to the present, his Honour declined to order interest on the basis that within s151 M (4), it was not appropriate for the employer to make an offer of settlement.

…

15 However, while this case bears some similarity to Corbett, there are important differences, including that in Corbett there were five defendants as opposed to two and what were described as “contentious” liability and contribution issues. While it is true that those matters were in issue during this trial, I would not categorise the issue of liability against Impact as particularly contentious, at least as the evidence unfolded before me. I think its negligence was gross.

16 It must have been apparent to parliament that s151 M contemplated situations where liability was in issue and other parties were involved. Nevertheless, it did not stipulate that the offer of settlement must resolve all issues between all parties. In this case, in my view, there may have been considerable utilitarian value in a settlement between Mr Goodman and Impact.

17 In my opinion, Mr Goodman has established an entitlement to interest in accordance with s151 M.

18 Mr Torrington did not submit otherwise than that his client is liable to pay interest.”

125. In this case, on the evidence before the Court, the plaintiff has failed to establish that information that would have enabled the second defendant to make a proper assessment of the plaintiff’s claim was given to the second defendant.

126. In the result, pursuant to s 151M(4)(a)(i) of the Workers Compensation Act, interest by the second defendant is not payable.

CONCLUSION

127. In the result, I confirm the following findings made by the Court in this judgment:

1. The Court awards the plaintiff damages of $49,500 for non-economic loss.

2. The Court awards the plaintiff damages of $234,500 for past economic loss.

3. Interest at 3% is payable by the first defendant on damages for past economic loss.

4. The Court awards the plaintiff damages of $181,042 for future economic loss.

5. Past loss of superannuation will be calculated at 11.5% of past economic loss.

6. Future loss of superannuation will be calculated at 12.87% of future economic loss.

7. The Court awards the plaintiff damages of $83,288.46 for past treatment expenses.

8. The Court awards the plaintiff damages of $150,000 for future treatment expenses.

9. The Court determines 70% liability against the first defendant and 30% liability against the second defendant.

10. The Court makes an award for costs against the first defendant on an ordinary basis. It is common ground that the second defendant’s costs are regulated by statute.

11. The cross-claims shall be dismissed with no order as to costs.

128. The Court has reserved the parties the task of making calculations as to the final amounts of damages awarded to the plaintiff for superannuation, Fox v Wood and interest (only in respect of the first defendant).

129. The parties shall bring in Short Minutes of Order reflecting the Court’s conclusion as to damages including the amounts requiring quantification in the light of this judgment.

ORDERS AND DIRECTIONS

130. The plaintiff shall bring in Short Minutes of Order reflecting this judgment within 14 days of the publication thereof.

**********

Endnotes

Decision last updated: 04 April 2025