PROTECTEX CHEMICAL INDUSTRIES PTY LTD v MORKAYA [1996] NSWCA 438

PROTECTEX CHEMICAL INDUSTRIES PTY LTD v MORKAYA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and COLE JJA 17 May 1996, 17 May 1996

[1996] NSWCA 438

DAMAGES — personal injuries — Workers Compensation Act 1987 s151L — whether statutory onus discharged — mitigation.

Plaintiff had suffered severe burn injuries at place of work — defendant employer admitted liability — serious long term effect on plaintiff's life and economic capacity — damages awarded to plaintiff. On appeal — past loss of earnings — interest on past loss of earnings — future loss of earning capacity — challenged on the basis that worker had not taken all reasonable steps to mitigate damages pursuant to s151L of Workers Compensation Act 1987 — that trial judge had erred in finding statutory onus discharged by worker — that worker had taken all reasonable steps to mitigate damage against weight of evidence. Held: trial judge was entitled to reach the conclusion he did and had sufficient evidence of everything the plaintiff had done up to the trial. It was open to trial judge to conclude that all reasonable steps had been taken by the plaintiff.

ORDERS

Appeal dismissed with costs.

Priestley JA This appeal is by a defendant who was the employer of the plaintiff at the time when a grievous accident occurred at the plaintiffs place of employment. In view of the circumstances of the case and the way the issues on the appeal have been presented it is not necessary to go into detail of what it was that happened to the plaintiff in the accident. It is enough to say that it caused him very serious injury with long term effects upon both his economic capacity and his life in general.

At the trial which was before Finlay J sitting alone, the defendant admitted liability. The trial judge delivered reasons for his decision, going into some detail. The severity of the effect upon the plaintiff of the accident can be discerned from the amounts assessed by the trial judge for the different heads of damage, which I will list in order to make intelligible what it was that the employer has sought to appeal about. General damages $108,000, interest on past general damages $7,020, past loss of earnings $116,965, interest of past loss of earnings $51,630, agreed Fox v Wood component $3,562, agreed past out of pocket expenses $103,381, future loss of earning capacity $215,000, past Griffiths v Kerkemeyer allowance $30,880, interest on that allowance $14,822, future expenses $78,400. This totals $729,660, from which $110,131 was to be deducted for the worker's compensation pay back, leaving a judgment sum of $619,529.