Raeburn v Tenix Defence Systems Pty Ltd (No 8)
[2006] VSC 391
•20 October 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5825 of 2004
| JOHN RAEBURN | Plaintiff |
| v | |
| TENIX DEFENCE SYSTEMS PTY LTD | Defendant |
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Ruling No. 8
JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 October 2006 | |
DATE OF RULING: | 20 October 2006 | |
CASE MAY BE CITED AS: | Raeburn v Tenix Defence Systems Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 391 | |
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Practice and procedure – costs - motion for judgment pursuant to jury verdict – accident compensation – s.134AB(12)(b) Accident Compensation Act 1985 – considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards, SC and Mr A Ingram | Clark and Toop |
| For the Defendant | Mr R Gillies, QC and Mr B McKenzie | Herbert Geer and Rundle |
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HIS HONOUR:
The plaintiff, Mr John Raeburn, has taken proceedings against the defendant, Tenix Defence Systems Pty Ltd claiming damages for injury suffered at work on 6 March 2000. The plaintiff was a fitter and turner employed by the defendant at the Williamstown dockyards doing work building Anzac Class frigates. The plaintiff injured his right knee while stepping onto a curved propeller shaft inside a frigate in order to access his work. The plaintiff essentially alleged that the defendant failed to provide a safe workplace and a safe system of work. The defendant denied such failure. Late on 12 October 2006, after a 12 day jury trial, the following verdict was received (T. 1148):
“Was there any negligence on the part of the defendant which was a cause of injury to the plaintiff?
… Yes
In what sum do you assess the plaintiff’s damages for (a) pain and suffering and loss of enjoyment of life?
… $150,000
And (b) pecuniary loss?
… $300,000
Is that the verdict of you all?
… Yes”
Thereupon I thanked the six jurors and finally discharged them.
The next morning, senior counsel for the plaintiff moved
“… for judgment in accordance with the jury’s verdict in the sum of $450,000 together with damages in the nature of interest agreed in the sum of $20,000”
together with costs pursuant to s.134AB(28)(b) Accident Compensation Act 1985 (“the Act”).
Senior counsel, Mr Gillies, for the defendant opposed the motion for judgment. Mr Gillies did so by reason of the following. On 5 April 2004 a statutory offer pursuant to s.134AB(12)(b) of the Act in the sum of $110,000 was made by the defendant. On 7 April 2004 a statutory counter-offer in the sum of $325,000 plus retention of compensation payments made to that date (agreed to be $113,299) was made by the plaintiff. Thus the plaintiff on 7 April 2004 offered to settle or compromise his claim for the sum of $438,299.
Senior counsel, Mr Richards, for the plaintiff supported the motion as follows. He submitted that pursuant to s.134AB(28)(b) the plaintiff is entitled to costs if judgment is obtained in an amount not less than 90% of the worker’s statutory counter-offer under sub-s.12. In receiving a verdict of $450,000 the plaintiff has exceeded 90% of the statutory counter-offer. The court should look to the value to the plaintiff of the statutory counter-offer being made by him (being $438,299) and compare it with the verdict of $450,000. The court should not look to the ‘core figure’ of the $325,000 of the statutory counter-offer and compare it to the jury’s verdict reduced by payments to the present (agreed to be $203, 078). To that end, Mr Richards relied upon Jeffrey v Amatek Limited.[1]
[1]22 October 2003, Judge Stott at pp.67-69
Mr Richards secondly and in the alternative submitted that the “judgment obtained” for the purpose of sub-s.134AB(28)(b) is the judgment of $450,000 entered in accordance with the jury’s verdict before the reduction pursuant to sub-s.134AB(25). Sub-section 25 contemplates that a judgment first be “made or entered” and then that the amount of the judgment be reduced. Likewise the provisions of s.134AB(22). Mr Richards submitted that the Act contemplates the court having regard to the amount recovered before reduction pursuant to sub-section 25.
Mr Richards thirdly and in the alternative submitted that for the purpose of determining the “judgment [which] is obtained” for the purpose of s.134AB(28)(b), the judgment entered in favour of the plaintiff should be reduced only by the sum of the weekly payments which had been received by the plaintiff at the time of the statutory counter-offer of 7 April 2004. That is, in determining the question of the plaintiff’s entitlement to his costs, the sum of $450,000 should be reduced by $113,299 making a nett amount of $336,701, which figure is in excess of 90% of the plaintiff’s statutory counter-offer of $325,000 plus retention of payments.
Mr Richards submitted that an approach other than those argued for would be failing to compare like with like. A statutory construction that does not compare like with like is to be presumed against. A statutory construction whereby the hurdle to be jumped by the plaintiff can increase week by week for an indeterminate time is to be presumed against.
I am not persuaded by Mr Richards’ submissions. The essential vice they contain is that they conflate verdict with judgment.
I turn first to the relevant terms of the section. Section 134AB(25) provides:
“If a judgment, order for damages, settlement or compromise is made or entered in favour of a worker or the dependants of a worker in respect of proceedings referred to in sub-section (1), the amount of the judgment, order for damages, settlement or compromise must be reduced by –
(a)to the extent that it is in respect of pecuniary loss, the amount of compensation (if any) paid otherwise than under section 98C, 98E and 99 or to the extent that section 93(10)(a) of the Transport Accident Act 1986 applies, except any such compensation paid in respect of the whole or any part of the period of 18 months after the relevant transport accident;
(b)to the extent that it is in respect of non-pecuniary loss, the amount of compensation (if any) paid under section 98C and 98E.”
Contrary to Mr Richards’ submission, the section does not contemplate that a judgment first be made or entered and then the amount of the judgment be reduced. The section requires that the amount of the judgment be appropriately reduced. It does not provide a two step process – the entering of a judgment and then its quantum reduction. The section contemplates a unitary entity – judgment in the prescribed (that is, reduced) amount. It is a misconception to propound the existence of two judgments – an unenforceable judgment for a higher sum and an enforceable judgment for a lower sum.
The construction contended for on behalf of the plaintiff is contrary to long-established authority, both under the former Workers’ Compensation Acts and under the Accident Compensation Act 1985. Mr Gillies in a powerful submission reviewed those authorities. They are Francis v TR & L Cockram Pty Ltd,[2] Gonis v Rooter (Australia) Ltd,[3] Alevres v Sidney Cook Fasteners Pty Ltd,[4] Wellbridge v Jackson,[5] Rukavina v Incorporated Nominal Defendant[6] and O’Connell v Melbourne Excavations and Demolitions Pty Ltd.[7] Against this clear line of authority is the decision of Judge Stott in Jeffrey v Amatek Ltd.[8] His Honour came to a contrary conclusion but did not state the reason therefor. In my view there is no reason, in the terms of the section, the purpose of the section, the scheme or in authority, to construe s.134AB(25) in any way other than by long authority has been applied to like provision. In the words of Crockett and Southwell, JJ (constituting the Court) in Rukavina v Incorporated Nominal Defendant at 690:
“The word ‘judgment’ … could not mean the total assessment of damages by a jury …”
[2](1957) VR 538 at 539 per Sholl, J in relation to s.14(2) Workers’ Compensation Act 1953.
[3](1960) VR 465 at 466 per Lowe, J in relation to s.79(2) Workers’ Compensation Act 1958.
[4](1972) VR 383 at 384 per Little, J in relation to s.79(2) Workers’ Compensation Act 1958.
[5](1990) VR 689 at 698-699 per curiam in relation to s.135(4A) Accident Compensation Act 1985.
[6](1992) 1 VR 677 at 690 per curiam in relation to s.135(4B) Accident Compensation Act 1985.
[7]7 March 1997, Ashley, J (as he then was) at p.1.
[8]22 October 2003 at p.69.
The essential flaw in the submissions on behalf of the plaintiff is to conflate verdict with judgment. As the authorities cited above unequivocally demonstrate, they are different entities. That is why, following verdict, there is a motion for judgment. Such motion is not otiose.
Accordingly, I refuse the plaintiff’s motion for judgment in the sum of the jury’s verdict.
For the reasons I have stated, I enter judgment for the plaintiff in the sum of $266,922 being the jury verdict of $450,000 less compensation paid of $203,078 plus agreed interest of $20,000. Unfortunately for the plaintiff, the amount of judgment entered is below 90% of the plaintiff’s statutory counter-offer.
I shall make Orders accordingly.
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