Qantas Airways Ltd v Lisica - [2007] NSWCA 371

New South Wales

Court of Appeal

CITATION: Qantas Airways Ltd v Lisica [2007] NSWCA 371
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25 May 2007

JUDGMENT DATE:
18 December 2007

JUDGMENT OF: Beazley JA at 1; Ipp JA at 68; McColl JA at 69

DECISION: 1. Appeal allowed with costs; 2. Respondent to have a certificate under the Suitor's Fund Act if so qualified; 3. Parties to bring in short minutes of order, on or before 30 January 2008, to accord with the reasons.

CATCHWORDS: DAMAGES — Personal injury — plaintiff with psychiatric disorder partly caused by sequelae of workplace injury and partly by marriage breakdown — real probability that had workplace injury had not occurred plaintiff might have suffered from a mental illness or condition that might have caused him pain and suffering and prevented him from improving his qualifications — failure by primary judge to evaluate the increased likelihood that plaintiff would have suffered pain and suffering, as well as economic loss, due to his psychiatric disorder even if workplace injury had not occurred material error warranting re-assessment of damages

LEGISLATION CITED: Suitors' Fund Act 1951
Workers Compensation Act 1987
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005

CASES CITED: Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473
Jobling v Associated Dairies Ltd [1982] AC 794
K-Mart Australia Ltd v McCann [2004] NSWCA 283
Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Mallet v McMonagle [1970] AC 166
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Seltsam Pty Ltd v Gahleb [2005] NSWCA 208; (2005) 3 DDCR 1
State of New South Wales v Burton [2006] NSWCA 12
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; (2004) 60 NSWLR 127

PARTIES: Qantas Airways Ltd - Appellant
Mark Lisica - Respondent

FILE NUMBER(S): CA 40799 of 2006

COUNSEL: Mr JE Maconachie QC with Mr NE Chen for the Appellant
Mr AJ Lidden SC with Mr MAJ Daley for the Respondent

SOLICITORS: Home Wilkinson Lowry - for the Appellant
Brydens Law Office - for the Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 572 of 2004

LOWER COURT JUDICIAL OFFICER: Quirk J

LOWER COURT DATE OF DECISION: 28 July 2006

CA 40799/06
DC 572 of 2004
BEAZLEY JA
IPP JA
McCOLL JA

Tuesday 18 December 2007

QANTAS AIRWAYS LTD v MARK LISICA

Judgment

1 BEAZLEY JA: I have had the advantage of reading in draft the judgment of McColl JA. As her Honour has set out the factual matters relevant to the issues raised before this…

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: [2007] NSWCA 371
Decision Date: 18 December 2007

CaseChat Overview and Summary

Qantas Airways Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge awarding damages to Mr Lisica for personal injury. The dispute concerned the assessment of damages for a psychiatric disorder that had sequelae from a workplace injury, but was also partly caused by a marriage breakdown.

The central legal issue before the Court of Appeal was whether the primary judge had erred in failing to adequately assess the increased likelihood that Mr Lisica would have suffered pain and suffering, and economic loss, due to his psychiatric disorder even if the workplace injury had not occurred. This involved considering the impact of the marriage breakdown on his mental health and future prospects independently of the workplace injury.

The Court of Appeal found that the primary judge had made a material error in this regard. It held that the assessment of damages must account for the real probability that Mr Lisica might have suffered from a mental illness or condition, leading to pain and suffering and hindering his ability to improve his qualifications, irrespective of the workplace injury. This failure to evaluate the independent contribution of other factors to his condition warranted a re-assessment of the damages awarded.

The appeal was allowed with costs, and the respondent was granted a certificate under the Suitor's Fund Act, subject to any qualifications. The parties were directed to submit short minutes of order consistent with the Court's reasons.

Orders

Orders of the court

1. Appeal allowed with costs; 2. Respondent to have a certificate under the Suitor's Fund Act unless otherwise qualified; 3. Parties to bring in short minutes of order, on or before 30 January 2008, to accord with the reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Qantas Airways Ltd v Lisica [2007] NSWCA 371 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	25 May 2007
JUDGMENT DATE:	18 December 2007
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 68; McColl JA at 69
DECISION:	1. Appeal allowed with costs; 2. Respondent to have a certificate under the Suitor's Fund Act if so qualified; 3. Parties to bring in short minutes of order, on or before 30 January 2008, to accord with the reasons.
CATCHWORDS:	DAMAGES — Personal injury — plaintiff with psychiatric disorder partly caused by sequelae of workplace injury and partly by marriage breakdown — real probability that had workplace injury had not occurred plaintiff might have suffered from a mental illness or condition that might have caused him pain and suffering and prevented him from improving his qualifications — failure by primary judge to evaluate the increased likelihood that plaintiff would have suffered pain and suffering, as well as economic loss, due to his psychiatric disorder even if workplace injury had not occurred material error warranting re-assessment of damages
LEGISLATION CITED:	Suitors' Fund Act 1951 Workers Compensation Act 1987 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005
CASES CITED:	Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 Jobling v Associated Dairies Ltd [1982] AC 794 K-Mart Australia Ltd v McCann [2004] NSWCA 283 Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Mallet v McMonagle [1970] AC 166 Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Seltsam Pty Ltd v Gahleb [2005] NSWCA 208; (2005) 3 DDCR 1 State of New South Wales v Burton [2006] NSWCA 12 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; (2004) 60 NSWLR 127
PARTIES:	Qantas Airways Ltd - Appellant Mark Lisica - Respondent
FILE NUMBER(S):	CA 40799 of 2006
COUNSEL:	Mr JE Maconachie QC with Mr NE Chen for the Appellant Mr AJ Lidden SC with Mr MAJ Daley for the Respondent
SOLICITORS:	Home Wilkinson Lowry - for the Appellant Brydens Law Office - for the Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 572 of 2004
LOWER COURT JUDICIAL OFFICER:	Quirk J
LOWER COURT DATE OF DECISION:	28 July 2006