MacDIARMID INDUSTRIAL SERVICES PTY LTD v LEMON; LEMON v FRISINA [1996] NSWCA 378

MacDIARMID INDUSTRIAL SERVICES PTY LTD v LEMON; LEMON v FRISINA

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ, MAHONEY P and MEAGHER JA 9 May 1996

[1996] NSWCA 378 Gleeson CJ. I ask Mahoney P to give the first judgment.

Mahoney P. The facts of this matter are set forth in the judgment of the Court given on 2 April 1996. Restated, as far as necessary for present purposes, they are as follows. The plaintiff suffered two accidents, a motor vehicle accident and an industrial accident. The motor vehicle accident was suffered on 2 June 1988 and resulted in the lesser of the injuries. On 20 December 1985 the plaintiff was injured at work and his injuries were much more substantial. Both proceedings were heard together and in July 1995 a jury gave judgment for the plaintiff in the motor vehicle claim for $50,000 and in the industrial accident claim for $925,032. With appropriate adjustments the verdicts were, respectively, $56,912 and $935,472.

The defendant in the industrial accident case, the company, appealed against the judgment in that case. The plaintiff in the motor vehicle case appealed against the judgment in the motor vehicle case. It is said, in the sense that is understood in this appeal, that that was a defensive appeal. It was brought, it is said, upon the basis that if the appeal against the industrial accident judgment were upheld and a new trial ordered, a question of apportionment of the plaintiff's ultimate and total state of disability between the two causes of action would or might be necessary. It was therefore said that the appeal brought by the plaintiff in the motor vehicle matter was defensive to enable, on a retrial, that matter to be reconsidered together with the industrial accident matter.

The Court, in the event, dismissed both appeals and dismissed them with costs. It dismissed the industrial accident appeal for the substantial reasons which are set forth in the judgment of the Court on 2 April 1996. It followed, from the course of proceedings and the appeals that followed, that the appeal against the motor vehicle judgment should also be dismissed. The Court made orders, as I have said, that the appeals be dismissed, with costs.