Teuma v CP & PK Judd Pty Ltd

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NEW SOUTH WALES COURT OF APPEAL

CITATION:      Teuma & Anor v C P & P K Judd Pty Ltd [2007]  NSWCA 166

FILE NUMBER(S):
40711/06

HEARING DATE(S):               25/06/07

JUDGMENT DATE: 17 July 2007

PARTIES:
Matthew Christian Teuma (First Appellant)
Charles Teuma (Second Appellant)
C P & P K Judd Pty Ltd (Respondent)

JUDGMENT OF:       Hodgson JA Ipp JA Basten JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 4620/05

LOWER COURT JUDICIAL OFFICER:     McGrowdie ADCJ

LOWER COURT DATE OF DECISION:    26/10/06, 15/09/06

COUNSEL:
S Harben SC/A Capelin (Appellants)
L King SC/P Khandhar (Respondent)

SOLICITORS:
TL Lawyers (Appellants)
Turks Legal (Respondent)

CATCHWORDS:
TORTS – NEGLIGENCE – liability – duty of care – whether first appellant had breached his duty of care to employee of the respondent – turns on own facts
REMEDIES – DAMAGES – quantification – gratuitous services – past and future domestic care – concept of ‘ordinary give-and-take’ of a marital relationship – whether services provided by injured employee’s spouse were to be classified as services additional to those as part of the mutual give-and-take of marriage – Roads and Traffic Authority (NSW) v Lolomanaia (2001) 34 MVR 249 and Matchan v Lyons (2004) 40 MVR 466 on this issue not followed – damages for provision of care of family pets – requirement of need – whether the injured employee had proved a need for such services – whether the trial judge erred in finding that, as regards one of three periods for past domestic care and future domestic care, the injured employee’s need for domestic assistance was seven hours per week
INTEREST – interest on judgment sum – whether trial judge had taken into account as a discretionary matter the claim made by the appellants that they had been prejudiced in the presentation of their defence on account of the respondent’s delay in bringing proceedings
WORKERS’ COMPENSATION – indemnification – claim for indemnity under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) – whether respondent entitled to be indemnified in respect of future payments of workers’ compensation to the injured employee up to an amount of $342,038.72 (being the capped notional damages sum of $577,334.00 minus the difference between $331,188.06 [being workers’ compensation payments that had already been made by the respondent] and $95,892.78 [being an amount time-barred by virtue of s 63(1) of the Limitation Act 1969 (NSW)]) or $246,145.94 (being the notional damages of $577,334.00 minus the payments made of $331,188.06) – whether the statute-barred amount constituted part of the capped damages sum to which the respondent was entitled from the appellants by way of indemnity and should, thus, be deducted.  D

LEGISLATION CITED:
Civil Procedure Act 2005 (NSW), s 100
Limitation Act 1969 (NSW), s 63(1)
Motor Accidents Act 1988 (NSW), ss 72(1A), (2)
Uniform Civil Procedure Rules 2005 (NSW), Sch 5
Workers Compensation Act 1926 (NSW), s 64
Workers Compensation Act 1958 (Vic), s 62(1)
Workers Compensation Act 1987 (NSW), ss 151Z(1)(d), (e), (e1)

CASES CITED:
CSR Ltd v Eddy (2005)…

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Details
Case
[2007] NSWCA 166
Decision Date

CaseChat Overview and Summary

The case of *Teuma v CP & PK Judd Pty Ltd* concerned an appeal from a District Court decision. The appeal was brought by the first appellant, who was alleged to have breached a duty of care owed to an employee of the respondent. The dispute centred on the quantification of damages awarded to the injured employee, particularly in relation to gratuitous services provided by the employee's spouse and care for family pets.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in assessing the damages for past and future domestic care, specifically concerning the classification of services provided by the injured employee's spouse and the need for such services. The court also considered whether the trial judge had erred in awarding damages for the provision of care for family pets, and whether the injured employee had adequately proven a need for such services. Furthermore, the court examined the trial judge's finding regarding the weekly hours of domestic assistance required by the injured employee for certain periods.

The Court of Appeal addressed the issue of gratuitous services by considering the "ordinary give-and-take" of a marital relationship. It departed from previous authorities such as *Roads and Traffic Authority (NSW) v Lolomanaia* and *Matchan v Lyons*, indicating that the services provided by the spouse were to be classified as additional to those ordinarily expected within a marriage. The court also considered the requirement of need in relation to the care of family pets, and whether this need had been sufficiently proven by the injured employee. The court ultimately rejected the appellant's grounds of challenge regarding the award of interest, finding that the trial judge's order was not demonstrably in error.

The Court of Appeal made orders declaring the limit of the indemnity available to the employer in respect of compensation paid to the injured worker, after the District Court judgment was satisfied, to be $342,038.72. The appeal was otherwise dismissed, with the appellants ordered to pay the respondent's costs.

Orders

Orders of the court

(1) Declare that the limit of the indemnity available to the employer in respect of compensation paid by it to the injured worker, after the judgment in the District Court is satisfied, is an amount of $342,038.72, being the amount of damages less the payment made under the indemnity pursuant to the judgment of the District Court in matter no 4620 of 2005. (2) Otherwise dismiss the appeal and order the Appellants to pay the Respondent's costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is doubt as to whether the trial judge took any of these factors into account. However, it would appear that some discount was intended to apply to a commercial interest rate which might otherwise have been adopted. Thus, it might have been thought, although there was no evidence in this regard, that the defendant may have been able to obtain a better return than the 6% which was allowed and that the cost of funds to the plaintiff may well have exceeded 6%. In any event, the complaint made by the Appellant is that any amount of interest was allowed. Once it is accepted that some payment of interest was appropriate, and in the absence of any alternative rate being proposed, it cannot be said that error has been demonstrated in the order made by the trial judge. Accordingly, this ground of challenge should be rejected also.Conclusions I would propose the following orders:(1)Declare that the limit of the indemnity available to the employer in respect of compensation paid by it to the injured worker, after the judgment in the District Court is satisfied, is an amount of $342,038.72, being the amount of damages less the payment made under the indemnity pursuant to the judgment of the District Court in matter no. 4620 of 2005.(2)Otherwise dismiss the appeal and order the Appellants to pay the Respondent’s costs of the appeal.

Ratio Decidendi

Legal Principle Established

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