Murrell v Brosna Construction Pty Ltd (in liq) - [2022] WADC 68 (S)

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
Fox v Wood (1981) 148 CLR 438
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
Smith v MMG Golden Grove Pty Ltd [2020] WADC 103

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…

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: [2022] WADC 68 (S)
Decision Date: 21 OCTOBER 2022

CaseChat Overview and Summary

In Murrell v Brosna Construction Pty Ltd (in liq), the plaintiff, Mr Murrell, sought to recover weekly payments of compensation that were made to him by his employer, Brosna Construction Pty Ltd, following an injury he sustained at work. The dispute reached the Supreme Court of New South Wales where the defendants, Brosna Construction Pty Ltd (in liquidation) and its insurer, were unable to pay the weekly compensation payments. The defendants argued that Mr Murrell's compensation payments should be assessed under Fox v Wood, and that any payments made should be deducted from any damages awarded. The court was required to determine whether the Fox v Wood assessment applied to the weekly payments of compensation and, if so, whether those payments should be deducted from any damages awarded.

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.

Orders