Suresh v Jacon Industries Pty Ltd

New South Wales

Court of Appeal

CITATION:	SURESH v JACON INDUSTRIES PTY LTD [2007] NSWCA 317
HEARING DATE(S):	30 October 2007
JUDGMENT OF:	Basten JA at 1; Mason P at 17
EX TEMPORE JUDGMENT DATE:	30 October 2007
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	APPEAL - damages - challenge to assessment
LEGISLATION CITED:	District Court Act 1973 (NSW), s 127 Supreme Court Act 1970 (NSW), s 75A
CASES CITED:	Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Suresh v Jacon Industries Pty Ltd [2005] NSWCA 202 Warren v Coombes (1979) 142 CLR 531
PARTIES:	Kumuda Suresh - Appellant Jacon Industriesl Pty Ltd - Respondent
FILE NUMBER(S):	CA 40556/06
COUNSEL:	D.W. Elliott - Appellant D.J. Hooke - Respondent
SOLICITORS:	Stephen Smart & Associates - Appellant Edwards Michael Moroney Lawyers - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3677/2000
LOWER COURT JUDICIAL OFFICER:	Armitage DCJ
LOWER COURT DATE OF DECISION:	10 August 2006

CA 40556/06
DC 3677/2000

MASON P
BASTEN JA

30 October 2007

SURESH v JACON INDUSTRIES PTY LTD

Judgment

1 BASTEN JA: In February 2000 the present Appellant commenced proceedings in the District Court for damages against the defendant in relation to the death of her late husband, who was fatally injured in a work accident whilst employed by the defendant (which is the present Respondent). His death occurred on 30 December 1997, whilst operating a lathe at the factory.

2 The matter first came before this Court in 2005, the District Court having dismissed her claim and given judgment for the defendant. The appeal was upheld and the matter remitted to the District Court for an assessment of damages: Suresh v Jacon Industries Pty Ltd [2005] NSWCA 202. That assessment was undertaken by Judge Armitage, who delivered judgment at the end of the further trial on 10 August 2006.

3 The schedule of damages prepared by the Appellant indicates that she seeks an increase in the amount allowed by the trial of $710,018 to an amount of $808,069. The difference in the two amounts, which is a fraction under $100,000, is apparently covered by a reduction in the amount claimed on account of past and future domestic assistance. However, the grounds of appeal allege four errors, which have been identified in the Appellant’s written submissions in the following terms:

(i) the finding that the deceased would have ceased remunerative work at 65 years of age and not at 70 years of age;

(ii) the allowance in the calculation of future economic loss of two-thirds of the allowance available to a leading hand, rather than the full amount;

(iii) a calculation of the entitlement of the children based on dependency to the age of 23, rather than 25 years, and

(iv) allowance for domestic assistance by ‘effectively averaging’ the parties’ contentions.

4 The complaint in relation to each of these findings was that the trial judge failed to give adequate reasons for his conclusions. If made out, that complaint would no doubt…