| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : WAINRIGHT -v- BARRICK GOLD OF AUSTRALIA LIMITED [2012] WADC 79 (S) CORAM : BOWDEN DCJ HEARD : 5 JULY 2012 DELIVERED : 8 JUNE 2012 SUPPLEMENTARY
DECISION : 6 JULY 2012 FILE NO/S : CIV 1291 of 2007 BETWEEN : SHEILA WAINRIGHT Plaintiff
AND
BARRICK GOLD OF AUSTRALIA LIMITED
Defendant Catchwords: Slip rule - Amendment of judgment Legislation: Rules of the Supreme Court 1971, O 21 r 10 Result: Amendments made as agreed
Disputed amendment not made
(Page 2)
Representation: Counsel:
Plaintiff : Mr T Lampropoulos QC
Defendant : Mr M Greenland
Solicitors:
Plaintiff : S C Nigam & Co
Defendant : Greenland Legal Pty Ltd
Case(s) referred to in judgment(s):
Jongen v CSR Ltd (1992) Aust Torts Reports 81-192
(Page 3)
1 BOWDEN DCJ: On 8 June 2012 I delivered judgment in this matter. I have been advised the judgment has not been extracted.
2 The parties have agreed that pursuant to O 21 r 10 of the Rules of the SupremeCourt 1971 the judgment ought be amended. 3 It is agreed that the loss on past superannuation be increased from $2,636 (including interest) to $14,245 on the basis that although I referred in [555] to an amount of $10,926 as the loss of past superannuation for the period 15January 2004 to 30September 2006, I omitted to add to the other amounts in [556]. I 'slipped' accordingly, the total referred to in [556] should be $13,408 from which 15% is deducted in accordance with Jongen v CSR Ltd (1992) Aust Torts Reports 81-192, resulting in an amount of $11,397 (rounded up) to which is added interest of $2,848 making an award of $14,245. 4 Although the defendant invited me to correct to 30% the Jongen deduction I decline to do so; 15% was the deduction I intended. 5 It is also agreed that special damages for which I had allowed $21,170 should be increased by $24,538 to reflect additional special damages paid pursuant to the Workers Compensation and Rehabilitation Act 1981. Accordingly, the total I allow for special damages is $45,708. 6 Further, it is agreed that the amount of $20,000 which I had allowed for past loss of earning should be increased by an amount of $22,918.88 nett to reflect payments made before 6 April 2005 pursuant to the Workers Compensation and Rehabilitation Act 1981. Accordingly I increase the past economic loss to $42,918.88. 7 I was also invited to amend the judgment in relation to the past loss of earning capacity for the period from 7 April 2005 (the date Ms Wainwright ceased work) through to 5 February 2007 (the date workers' compensation payments ceased). That amount calculates to approximately $70,000. 8 It was suggested that as I found Ms Wainwright's employment was terminated in September 2006 and their was no plea or finding that she had failed to mitigate her loss by not accepting a job, an allowance ought be made as it was reasonable for her to seek to minimize her loss of employment by accepting workers compensation payments to avoid the consequence of the loss (ts 1344 - 1345). It was suggested a period of approximately five months (ts 1351) ought be allowed as a reasonable period for her to find other employment. (Page 4)
9 This amendment was opposed by Mr Greenland. 10 In my opinion this would involve a consideration of new issues not covered in the judgment and therefore outside of the slip rule and I decline to make that amendment. 11 Accordingly the damages I allow the plaintiff are as follows: 1. General damages: $50,000.00 2. Past economic loss: $42,918.88 3. Interest on past economic loss: $4,300.00 4. Fox v Wood allowance: $32,597.00 5. Future economic loss: $15,550.00 6. Loss of past superannuation: $14,245.00 7. Loss of future superannuation: $2,321.00 8. Special damages: $45,708.00 9. Future medical expenses: $3,509.00 Total $211,148.88 |