Franco v Workers Compensation Nominal Insurer (No 2) [2021] NSWSC 129

Supreme Court New South Wales

Medium Neutral Citation: Franco v Workers Compensation Nominal Insurer (No 2) [2021] NSWSC 129 Hearing dates: 3, 4 August 2020 Decision date: 22 February 2021 Jurisdiction: Common Law Before: Rothman J Decision: (1) Judgment for the plaintiff against the defendant; (2) The defendant shall pay the plaintiff damages in the sum of $1,138,449.60; (3) Pursuant to the terms of s 101 of the Civil Procedure Act 2005 (NSW), interest will be paid at the prescribed rate in accordance with the rules; (4) The defendant shall pay the plaintiff's costs of and incidental to the proceedings; (5) Leave is granted to each party to address the Court on any calculation error; or misstatement of multiplier; any need to repay or to specify repayment of any sum; the form of the orders; and on any special or different order as to costs. Such application shall be made within 2 working days of the date of judgment, by email, accompanied by a short submission in writing, to the extent so advised, of no more than five pages, not including any evidentiary material relating to any offer that may or may not have been made and may be the subject a response within a further 3 working days by any party affected by any such application or submission; (6) Otherwise proceedings are dismissed. Catchwords: WORKERS COMPENSATION – common law damages – negligence of employer – contributory negligence – economic loss, past and future – damages awarded Legislation Cited: Corporations Act 2001 (Cth), s 601AG Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW), s 101 Workers Compensation Act 1987 (NSW), ss 66, 151G, 151H, 151IA Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 294 Cases Cited: Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28 British Fame (Owners) v Macgregor (Owners) [1943] AC 197 Council of the City of Greater Taree v Wells (2010) 174 LGERA 208; [2010] NSWCA 147 DIB Group Pty Ltd t/as Hill & Co v Cole (2009) Aust Torts Reports 82–022; [2009] NSWCA 210 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 Franco v Workers Compensation Nominal Insurer [2020] NSWSC 915 Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494; [1985] HCA 34 Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) Aust Torts Reports ¶81–949; [2008] NSWCA 99 Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559; [2008] NSWCA 217 Category: Principal judgment Parties: Marina Franco (Plaintiff) Workers Compensation Nominal Insurer (Defendant) Representation: Counsel: R de Meyrick & J Mrsic (Plaintiff) S Kettle (Defendant)