Oroz v Hansen Yuncken Pty Ltd & Anor

[2006] NSWSC 1136

CITATION:	Oroz v Hansen Yuncken Pty Ltd & Anor [2006] NSWSC 1136
HEARING DATE(S):	9 - 13 February 2004, 16 - 19 February 2004, 27 February 2004, 11 June 2004, 23 July 2004, 1 October 2004, 1 December 2004, 11 March 2005, 15 March 2005, 7 July 2005, 29 August 2005, 28 April 2006, 24 October 2004
JUDGMENT DATE :	24 October 2006
JUDGMENT OF:	Simpson J
EX TEMPORE JUDGMENT DATE:	10/24/2006
DECISION:	Investment rate allowed in respect of amount awarded for fund management in accordance with GIO v Rosniak (1992) 27 NSWLR 665; damages for future care to be calculated and entered on basis of accurate up-to-date figures ; damages for future loss of income to be calculated and entered on basis of accurate up-to-date figures ; to the extent that the plaintiff is entitled to interest on any damages to be awarded , such interest is not payable in respect of such sums as have been paid to the plaintiff, from the date on which those sums was paid; the sum allowed in respect of house modification fixed at the time of Reasons for Judgment and based upon evidence given in the trial to stand
CATCHWORDS:	damages for personal injury - damages for additional costs of plaintiff's holidays - investment rate to be allowed in respect of sum awarded for fund management - calculation of damages for future care - calculation of damages for future loss of income - award of damages for expenses incurred in modifying plaintiff's home
CASES CITED:	GIO v Rosniak (1992) 27 NSWLR 665
PARTIES:	Ilija Oroz - Plaintiff Hansen Yuncken Pty Ltd - 1st Defendant Auburn United Formwork Pty Ltd - 2nd Defendant
FILE NUMBER(S):	SC 20905/01
COUNSEL:	D Kennedy SC/ F Fletcher - Plaintiff J de Greenlaw - 1st Defendant MJ Jenkins - 2nd Defendant
SOLICITORS:	Taylor & Scott - Plaintiff McCulloch & Buggy - 1st Defendant Bartier Perry - 2nd Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROGRESSIVE LIST

SIMPSON J

Tuesday 24 October 2006

20905/01 Ilija Oroz v Hansen Yuncken Pty Ltd & Anor

EX TEMPORE JUDGMENT

1. HER HONOUR: In this matter I delivered reasons for judgment on 1 October 2004 and awarded damages to the plaintiff for serious personal injury suffered by him on 25 November 1999. Since then the proceedings have had a tortured history but have not resulted in judgment being entered, although I have delivered at least four supplementary judgments, and on each occasion requested the parties to bring in short minutes of order reflecting the various decisions that I have made. To date that has not been achieved.

2. The matter has been relisted yet again today for the purpose of argument on some limited issues. One of these concerned the award of damages to compensate the plaintiff for additional costs that will be incurred when he takes holidays. I resolved that without significant opposition by adopting the figures proposed by the plaintiff.

3. Another concerned the investment rate that should be allowed in respect of the sum awarded for fund management. Having heard argument on behalf of the plaintiff and on behalf of the first defendant I took the view that I was bound by the decision of the Court of Appeal in GIO v Rosniac (1992) 27 NSWLR 665, and I so ruled.

4. Finally, an issue arose concerning the basis on which damages for future care should be calculated. At the time of the substantive hearing rates referred to as “Silver Service rates” were tendered. These were current as at the time of hearing and have been referred to as the 2003 rates. In the two years that have elapsed since I delivered those reasons rates have increased and the plaintiff now proposes that those damages should be calculated on the basis of what are called “Silver Service 2006 rates”. The first defendant opposes this course, arguing that damages should be calculated on the basis of the evidence that was tendered in 2004 and judgment delivered as though notionally it were being delivered in October 2004. It is unnecessary to go into the reasons for the two year delay between the delivery of my findings and the present. It is sufficient to say that there were a number of reasons, some of which appear to have been good reasons and some of which are more doubtful. In any event, we are now here more than two years after reasons were delivered and the plaintiff has still not received judgment, although I add that the first defendant has made an interim payment to him.

5. I am faced with this decision; either I rule that the damages presently in issue should be calculated on the basis of figures now known to be out of date but that would have been adopted had the matter been dealt with more expeditiously, and the plaintiff would be unable to complain or draw to my attention the increase in rates. The alternative is to recognise the realities of the situation, that the plaintiff has not received judgment and that, as a matter of practical justice, the Court should act upon the best information available to it.

6. Counsel who appears for the first defendant has urged that the plaintiff has not sought to reopen and, therefore, is not entitled to produce the updated figures. I am not prepared to engage in a debate about whether, as a matter of technicality, the plaintiff ought to seek leave to reopen. To the extent that he does need that I grant that leave. I appreciate the argument put on behalf of the first defendant but it suffers from the deficiency that it engages the Court in something of a fiction. The fact is that judgment is only now, and I hope it is now, to be entered, and it ought to be entered on the basis of accurate figures rather than figures that are known not to be accurate. Accordingly, damages to be awarded in respect of the outstanding issues should be calculated on the basis of 2006 figures.

7. There was also a similar issue about the basis upon which damages for future loss of income should be calculated. In the interests of consistency I take the same approach.

8. The first defendant has made a payment of $750,000 to the plaintiff. To the extent that the plaintiff is entitled to interest on any of the damages to be awarded such interest is not payable in respect of that sum from the date on which it was paid.

9. One component in the original award of damages was a sum to compensate the plaintiff for expenses he would incur in modifying his then existing home to provide more suitable accommodation for his needs in his injured state. The figure was fixed at the time of the original reasons and was based upon evidence in the trial. The lapse of time since then has had this additional consequence that has also changed the position. I have been told from the bar table that the plaintiff has sold that home and purchased another. Application was therefore made that I vary the award of damages so as to delete the sum of damages awarded in that respect. The argument overlooks a number of significant possible factors. One is that I do not know whether, before the sale, the plaintiff in fact carried out the alterations. Another is I do not know whether his replacement home will require similar modifications.

10. Counsel for the first defendant responded to this latter point by suggesting that he ought to have taken into account his needs in selecting the replacement house but this, too, is far more complex than that submission recognises. The plaintiff does have special needs and it is likely that any existing house will not be perfectly suited to those needs. Another factor is that if he has purchased a home that will accommodate those needs it may be that that has resulted in his having to pay a higher purchase price. What I am saying, in effect, is that the issue is potentially factually complex. To accede to the application made on behalf of the first defendant would involve not only unravelling what has already been done but exploring what might have to be done or the consequences and implications of what has been done. Accordingly, I reject the application.

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