OCS Australia Pty Ltd v Cho

NEW SOUTH WALES COURT OF APPEAL

CITATION:
OCS AUSTRALIA PTY LTD v CHO [2010] NSWCA 85

FILE NUMBER(S):
2009/298242

HEARING DATE(S):
29/03/2010

JUDGMENT DATE:
23 July 2010

PARTIES:
OCS (Australia) Proprietary Limited, trading as Overseas Courier Serivces - Appellant
Helen Cho - Respondent

JUDGMENT OF:
McColl JA Handley AJA Sackville AJA   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
3810/2007

LOWER COURT JUDICIAL OFFICER:
O'Toole DCJ

LOWER COURT DATE OF DECISION:
11/02/2009

COUNSEL:
L King SC and J Catsanos - Appellant
R A Cavanagh - Respondent

SOLICITORS:
Tresscox Lawyers - Appellant
Holman Webb Lawyers - Respondent

CATCHWORDS:
APPEAL – competency – amount in issue – quantum appeal – bona fide claim for requisite amount – susceptible of reasonable support – appeal competent.
APPEAL – competency – amount in issue—property or civil right of requisite value – employer’s claim to indemnity under Workers Compensation Act s 151Z—civil right – notional pool of damages of requisite value – appeal competent.
DAMAGES—no question of principle.

LEGISLATION CITED:
Workers Compensation Act 1987, 151Z(1)(d)
District Court Act 1973, s 127(2)

CATEGORY:
Principal judgment

CASES CITED:
A-G v Arthur Ryan Automobiles Ltd [1938] 2 KB 16 CA
A-G ex rel Duncan v Andrews [1979] HCA 24, 145 CLR 573
Cole v The Commonwealth [1961] HCA 87, 106 CLR 653
Dunn v Ross Lamb Motors [1978] 1 NSWLR 26
Grant v Royal Rehabilitation Centre Sydney [1999] NSWCA 250, 47 NSWLR 263
South Eastern Sydney Area Health Service v Gadiry [2002] NSWCA 161; 54 NSWLR 495

TEXTS CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

09/298242

McColl JA
Handley AJA
Sackville AJA

Friday 23 July 2010

OCS AUSTRALIA PTY LIMITED  v  HELEN CHO

CATCHWORDS

APPEAL – competency – amount in issue – quantum appeal – bona fide claim for requisite amount – susceptible of reasonable support – appeal competent.
APPEAL – competency – amount in issue—property or civil right of requisite value – employer’s claim to indemnity under Workers Compensation Act s 151Z—civil right – notional pool of damages of requisite value – appeal competent.
DAMAGES—no question of principle.

HEADNOTE

One of the appellant’s employees was injured in a motor vehicle accident on her way to work and was paid compensation. The employer sued the driver of the other vehicle to enforce its right of indemnity under s 151Z(1)(d) of the Workers Compensation Act 1987. The trial Judge found that the motor vehicle accident had caused only minor injuries from which the worker had soon recovered and that her continuing incapacity was the result of degenerative disease in her lumbar spine, back injuries in the employment of a previous employer, and surgical procedures. She therefore assessed the notional pool of damages at $3392. The employer appealed as of right claiming that a proper assessment of the notional pool for the purposes of s 151Z(1)(d) was in the order of $720,000. The respondent objected to the competency of the appeal on the ground that…