JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MURRELL -v- BROSNA CONSTRUCTION PTY LTD (in liq) [2022] WADC 68 (S)
CORAM: BOWDEN DCJ
HEARD: 8 SEPTEMBER 2022
DELIVERED : 21 OCTOBER 2022
FILE NO/S: CIV 4357 of 2019
BETWEEN: DWAYNE JOHN MURRELL
Plaintiff
AND
BROSNA CONSTRUCTION PTY LTD (in liq)
Defendant
Catchwords:
Fox v Wood assessment for weekly payments of compensation received - Order 24A offer made 'exclusive of compensation'
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Judgment for the plaintiff in sum of $557,009.18
Defendant pay the plaintiff's costs agreed or taxed until 21 January 2021
Plaintiff pay the defendant's costs to be agreed or taxed from 21 January 2021
Representation:
Counsel:
| Plaintiff | : | Mr P Jarman |
| Defendant | : | Mr J R Criddle |
Solicitors:
| Plaintiff | : | Jarman Legal |
| Defendant | : | SRB Legal |
Case(s) referred to in decision(s):
Alvarez Cabrera v Piv's Engineering Pty Ltd [2012] WADC 62
Batchelor v Burke (1981) 148 CLR 448
British Transport Commission v Gourley [1956] AC 185
Brown v Churchill [2006] WASCA 17
Gosper v Christopherson [1986] HCA 28; (1986) 160 CLR 423
Haines v Bendall (1991) 172 CLR 60
Murrell v Brosna Constructions Pty Ltd (in liq) [2022] WADC 68
BOWDEN DCJ:
On the 4 August 2022 I delivered judgment in this matter following a nine-day civil trial: Murrell v Brosna Constructions Pty Ltd (in liq) [2022] WADC 68 (Murrell) [442].
As requested by the parties I calculated past economic loss without taking into account the wages component of worker's compensation payments as both counsel wished to make submissions in this respect post judgment: Murrell [442].
I assessed the damages awarded to Mr Murrell as follows: Murrell [468]:
General damages
$60,500.00
Past loss of earnings
$144,419.00
Loss of future earning capacity
$272,283.00
Loss of future superannuation
$34,052.00
Special damages
$2,799.79
Future medical expenses
$7,000.00
Past travelling expenses
$1,500.00
Medical expenses, travel, vocational expenses
$19,001.00
Interest on past loss of earnings
$24,696.00
$505,750.79
(Excluding general damages)
less 5% contributory negligence on $505,750.79 (as 5% already deducted on general damages) $480,463.25 + $60,500 = $540,963.25.
The parties have now made submissions in relation to the wages component of past economic loss and the effect of Fox v Wood (1981) 148 CLR 438. The parties also made submissions in respect of interest on special damages and past travelling expenses, interest on past economic loss and an O 24A offer.
Fox v Wood component of past economic loss
The plaintiff's position is that pursuant to Fox v Wood the plaintiff is entitled to have included in damages the amount of income tax to be paid on weekly compensation payments as pursuant to s 92 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) the plaintiff is obliged to repay to the insurer the gross amount paid in respect of weekly payments, but damages were assessed…
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- Case
- [2022] WADC 68 (S)
- Decision Date
CaseChat Overview and Summary
The court found that the Fox v Wood assessment did apply to the weekly payments of compensation. The court held that the offer made under Order 24A of the Supreme Court Civil Procedure Rules 2005 (NSW) was made "exclusive of compensation", and that the compensation payments were to be assessed in the same way as any other damages awarded. The court further found that the defendants were entitled to deduct the weekly payments of compensation from any damages awarded to Mr Murrell. The court held that the Fox v Wood assessment was a statutory method of assessing damages and that the defendants were entitled to rely on it to reduce their liability.
The court ordered that the defendants were to pay Mr Murrell the sum of $41,435.02, which represented the balance of the damages awarded, less the weekly payments of compensation that had been made. The court also ordered that the defendants were to pay Mr Murrell interest on the unpaid balance of the damages awarded from the date of the offer under Order 24A to the date of judgment. The court further ordered that the defendants were to pay Mr Murrell's costs of the proceeding.
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