WILLIAMS and ORS t/as HARRIS WHEELER v BODEWES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COMMON LAW DIVISION MASON P, COLE and STEIN JJA 15 September 1997, 1 October 1997 [1997] NSWCA 346 Professional Negligence — solicitors — industrial negligence claim statute barred — quantum of damage — trial judge entitled in the circumstances to make an assessment of likely damages without expert evidence The respondent fell down a staircase at work but due to his solicitor's negligence his claim against his employer for breach of a statutory or common law duty to fence the staircase was statute-barred. The respondent sued his solicitor for negligence. At the trial, the judge found that the respondent's claim against the employer could have been made out assessed the respondent's damages without requiring expert evidence and made a deduction for workers' compensation payments received by the respondent. On appeal: The appellant contended that the trial judge was not entitled to: (1) find a breach of the employer's duty to the respondent; (2) assess damages lost by the respondent without expert evidence; or (3) deduct the value of the respondent's redemption of his workers' compensation entitlements from the verdict. Held: The trial judge was, in the circumstances, entitled to find that the facts amounting to a breach of the employer's duty to the respondent were made out; assess the respondent's loss by determining his damages without expert evidence; and deduct workers' compensation entitlements from his total damages. Scott v Echegaray 1991 ATR 81-120 Nicholaou v Papasavas, Phillips & Co (1988-1989) 166 CLR 394 Tutunkoff v Thiele (1975) 11 SASR Johnson v Perez(1988) 166 CLR 351 considered. Mason P I agree with Cole JA and Stein JA. Cole JA The material facts are set out in the judgment of Stein JA. Three matters were argued on appeal. The first was whether there was evidence to sustain Hulme J's finding that there had been a breach of the construction safety regulations, and thus there had been established a statutory count. I agree with his Honour that there was such evidence. ABSENCE OF EVIDENCE The second contention of the appellant's was that it was not open to Hulme J himself to decide the damages which the respondent would have been awarded had the appellants not breached their duty to him and there had occurred a nominal trial in an action for negligence against the employer in February 1987, absent expert evidence called before Hulme J indicating the range of damages which a court might have awarded at that time. Such evidence of likely damages, and of the manner in which they would have been determined in 1987, could have been led by calling counsel, solicitor or an insurance company officer 2 UNREPORTED JUDGMENTS experienced in the field of litigation at that time. It was not permissible for a judge to make such an assessment of damage absent such expert evidence. Neither senior counsel for the appellant, nor counsel for the respondent was able to direct the Court to any authority which so held. However reliance was placed upon the passage in the judgment of Mahoney JA in Scott and Ors v Echegaray!, that also being an action in negligence against solicitors for failing to commence common law proceedings: "Tn order to estimate the plaintiff's damages the learned judge: (a) assessed the value of her right to sue at common law at the relevant time; (b) assessed the value of her rights under the Workers Compensation legislation; and (c) deducting (b) from (a), awarded the plaintiff the difference. (a) In assessing the value of the plaintiff's common law rights, his Honour assessed the damages which the plaintiff would have obtained if she had sued at law and had succeeded; he then assessed the plaintiffs chance of succeeding at common law (50 per cent); and he discounted the potential verdict by her chance of success. At the trial, the parties had come to an agreement as to how these matters should be approached. Jn the ordinary course, it would have been necessary for them to establish, by the evidence of experts, at least the first two of these matters. With a view no doubt to avoiding that course, they adopted another procedure which the learned judge referred to as follows: "I should at this stage record that on the question of evidence of duty of care owed by the defendants to the plaintiff, a document stating the following was by consent put before me and filed with the papers: 'The parties agree that for the purpose of this case the court is entitled to take judicial notice as to the proper course of professional practice of a solicitor in relation to personal injuries litigation both as to damages claims and as to claims for worker's compensation, for the period from 1977 to date. "' It has been assumed in argument that the "judicial notice" there referred to entitled the judge, in the application of his own knowledge and experience, to make the relevant assessment of common law and worker's compensation rights and their respective values." (emphasis added) The argument addressed to this Court was that there were only three possible approaches in assessing such damages. First, the parties may agree on the question of the damages at the notional date of trial. Second, the parties may agree that the trial judge can assess such damages at the notional date of trial using the judge's judicial experience. Or, third, the plaintiff must, and the defendant may if it wishes, call evidence of an expert nature concerning the quantum and method of assessment of damages. Scott v Echegaray was a case falling in the second category, but in the present case before Hulme J neither the first nor the second approach had been adopted, and absent the plaintiff calling the expert evidence referred to in relation to both items (a) and (b) identified by Mahoney JA, the plaintiff must fail. Reference was also made to the judgment of Mason CJ in Nikolaou v Papasavas, Phillips & Co?. His Honour said: 1. (1991) ATR, 81-120, p69, 129 at 69, 134-69, 135. 2. (1989) 166 CLR 394 at 399. URJ WILLIAMS and ORS t/as HARRIS WHEELER v BODEWES (Cole JA) 3 "In Tutunkoff v Thiele, Bray CJ considered the assessment of damages in an action against a solicitor for negligently allowing a claim for personal injuries against an employer to become time barred. In deciding what evidence he could include when evaluating the plaintiff's damages, Bray CJ said ((1975) 11 SASR at 150-151): "what I have to decide is what the plaintiff has lost by the defendant's negligence and what he has lost is what a court would have awarded him in an action by him against his employer, not what I would award if the present action were an action against the employer..." In such a situation a court's goal is to determine what amount of money would put the plaintiff in the position he would have been in had the solicitor not been negligent. That inquiry requires that the court ascertain, as best it can, how large an award the plaintiff would have received in the underlying action. Toward that end it may well be appropriate to consider evidence that has emerged after a final judgment should have been obtained if that evidence speaks to the condition of the plaintiff at that time and would assist the court in evaluating the case that the plaintiff could have made: see Tutunkoff v Thiele. That evidence would be useful in the historical task of determining just what the plaintiff has lost by the solicitor's negligence." The passage in the judgment of Bray CJ does not address the question of whether expert evidence is necessary. It was used, however, by the appellant to emphasise that the task before the court in such an action in negligence is not to determine what the trial judge would at the date of trial award the plaintiff if the action were an action against the employer, but rather what "a court" would have awarded him in such an action at the nominal time of hearing had the solicitors not been negligent. A distinction u as sought to be drawn between what "'a court" would award and what the particular trial judge would award such that it was said to be necessary that there be called evidence of what "a court" would award to enable the trial judge to make his assessment. Ido not think the appellant's contention should be upheld. It may well be that, as a matter of practice, evidence is frequently called to assist the trial judge in the determination of the measure of damages which might have been awarded by a court in time past. That, however, is a different question to whether it is necessary that such evidence be called. One can readily bring to mind examples where to call such expert evidence would be of no assistance to the trial judge and would simply inflate costs. One such example would be an action in negligence in either the District Court or the Supreme Court put before an experienced trial judge on the issue of assessment of damages where the time at which the nominal trial would have been held was some twelve months before the hearing of the action in negligence. This weighs against the contention that expert evidence is necessary. The conceptual basis for the submission is that a trial judge is entitled to act only on evidence. As the point in issue is what a court would have awarded at some time past, a judge may not use his own knowledge or experience to determine that amount. Mr Nock SC for the appellant accepted that the question whether evidence was required or not did not depend on the experience of the particular trial judge in the action in negligence in assessing damages. The matter was grounded in the principle that the trial judge could only act on evidence, whatever that particular judge's experience might be. 4 UNREPORTED JUDGMENTS The consequence of the submission was that if, for instance, the parties each led evidence, the plaintiff's expert asserting that a court would have awarded say, $100,000 damages, and the defendant's expert asserting that the figure would have been $50,000, the trial judge was not entitled to find a figure outside that range. That was said to be so even though it was accepted that the trial judge was not bound to accept either expert. Further, it was argued that the trial judge was not himself entitled to consult records or judgments relating to trials at the nominal hearing date to determine an appropriate quantum of damages. Certainly, so it was argued, he could not do so without drawing to the attention of the parties the output of such researches as he had undertaken so as to permit the parties to put submissions concerning any material so discovered. I recognise the considerable force in these submissions. Nonetheless I am not persuaded that there is any principle of law which establishes that in all cases a trial judge in a negligence action must have evidence before him of an expert nature quantifying damages which might have been awarded by a court in the past. Whilst the usual practice of calling such expert evidence is to be commended for it negates any disquiet that parties might have concerning the experience of the particular trial judge in the assessment of damages at the earlier time of the nominal trial, there are circumstances where the calling of such evidence would be redundant and of no assistance. It is to be borne in mind that even where such evidence is called it remains the task of the trial judge to make his own determination of the amount which a court would have awarded at the prior point of time. In that sense the decision is the decision of the trial judge although it represents his finding of what another judge or court reasonably would have awarded. Where the issue is factor (a) referred to by Mahoney JA in Scott v Echegaray, the question whether evidence is necessary will depend upon the particular circumstances of the case. I am not persuaded in the circumstances of this case that it was essential for there to be called evidence of the quantum which a court would have awarded in respect of the plaintiffs injuries in 1987. The position, however, is in my view different in relation to a determination of the value of rights under workers compensation legislation, being factor (b) identified by Mahoney JA. The difference arises because it cannot be said that the Supreme Court or District Court, as part of its function, determines that quantification. The Supreme Court or District Court determine the question of common law damages, or modified common law damages depending upon the relevant statutory regime. Past workers compensation entitlements are generally irrelevant to that determination, although the quantum of such entitlements may be deducted from any general verdict. The Supreme Court and District Court do not normally make assessments of future workers compensation entitlements, or the value of redemption thereof. Thus it seems to me in the determination of that factor evidence is necessary, absent agreement of the parties regarding that quantification. In the case before Hulme J the only possible evidence concerning the value at February 1987 of future workers compensation entitlements was the commutation award. If the trial judge u as entitled to rely upon that figure, and this raises the third issue on appeal, there was evidence upon which Hulme J could and did act. If the trial judge was not entitled to rely upon the court approved redemption, then it seems to me that there was no evidence which would have enabled Hulme J to resolve factor (b) identified by Mahoney JA. URJ WILLIAMS and ORS t/as HARRIS WHEELER v BODEWES (Cole JA) 5 The third matter raised on appeal was a challenge to Hulme J's deduction from the common law damages which his Honour found would have been awarded, the sum of $30,000 being the sum for which the respondent in fact redeemed his worker's compensation entitlement on 7 May 1992. It was contended that what had to be valued was the value as at February 1987 of the plaintiff's past, and, more especially, the worker's future compensation entitlements. The valuation of that prospective income stream, which might be varied depending upon changes in the plaintiffs condition, was not necessarily represented by the value for which he in fact redeemed his worker's compensation entitlements, both past and future, in May 1992. The reason why it is necessary to value future workers compensation entitlements after the nominal date of trial of the common law action in February 1987 is because, as the trial did not take place due to the solicitor's negligence, his workers compensation rights continued. If the plaintiff were to be awarded common law damages assessed as at February 1987 without the deduction of the then present value of those future rights, the plaintiff might be doubly compensated. Support for the appellant's position is found in Tipper v Williams (No2)3. The court was there dealing with a case similar to the present. Evidence was called which established that the amount which the plaintiff would there have been likely to receive on redemption of his workers compensation entitlements was between $50,000 and $60,000. However fifteen years had passed since the worker's injury and there had not been any redemption. The respondent there argued that it was appropriate to deduct from the common law damages otherwise awarded for negligence the sum of $60,000 which would have been received had the workers compensation entitlements been redeemed. Clarke JA, with whom Handley JA agreed, said, in rejecting the deduction of $50,000 or $60,000: "Tn my view this is not an appropriate figure because, although it represents the amount which the respondent would receive if he were to agree on a redemption with his employer, no allowance is made in the redemption figure for the fact that if the respondent sought to continue to receive weekly payments for the rest of his life, or the employer was not prepared to redeem, his rights were, in a real sense, very much more valuable. The correct approach which I believe should be taken is that rights to receive weekly payments and other payments for the rest of the respondent's life should be valued in broadly the same way as the future impairment of his earning capacity subject only to one thing to which I will return in a moment. I recognise that there are fundamental differences between the concept of compensation for impaired earning capacity and the value of continuing workers compensation rights. But insofar as the tables applied in valuing the former are concerned with the provision of a present day value for continuing weekly payments for various periods of time I think there is a sufficient identity between the two to adopt the same procedures for both. I would accept, however, that the considerations which lead to a deduction on account of vicissitudes in the valuation of an impaired future earning capacity are different from those considerations which should lead to a deduction for vicissitudes in respect of future workers compensation rights. 3. (Unreported, Court of Appeal, 6 May 1994). 6 UNREPORTED JUDGMENTS Further, it has often been said that there is a real difference between the benefit of a lump sum to a person in the position of the respondent and the benefit of periodical payments (see, for instance, Scott and Ors v Echegaray ([1991] ATR 69129 at 69137-8) and the fact that on a redemption a worker receives a much lesser sum than would be arrived at by the conventional discounting procedures followed in assessing common law damages is, to an extent, a recognition of this."4 I do not think that the award of the compensation court redeeming the respondent's rights to receive, and the employer's obligation to pay weekly compensation payments arising from the work related accident on 19 February 1981, which redemption award was made on 27 May 1992 can, unexplained, be treated as the value of the respondent's entitlement as at February 1987 to benefits under the Workers' Compensation Act The reason why that is so flows from the provisions of the commutation provisions in the Workers' Compensation Acts. $15(1) Workers' Compensation Act 1926 provided: "Subject to this Act, the liability in respect of any weekly payment may, with the consent of the worker, be redeemed either in whole or in part by the payment of a lump sum, determined by the Court, having regard to any dispute as to liability to pay compensation under this Act and the injury, age, and occupation of the worker at the time of the occurrence of the injury, as well as to his diminished ability to compete in an open labour market." S51 Workers' Compensation Act 1987, under which the respondent's rights were in fact commuted, provides that the section applies: "(b) to a liability to make a weekly payment of such a class and to such an extent as may be prescribed by the regulations; and (c) to a liability to make a weekly payment to a particular worker (and to the extent) approved by the Authority in special circumstances such as the following: (i) the worker requires a lump sum to establish an income-producing business; (ii) the worker requires a lump sum to enable the worker to move from the area in which he or she lives and there are substantial economic or compassionate grounds for doing so; (iii) the lump sum would otherwise be likely to assist substantially in the rehabilitation of the worker because of the special circumstances of the case." $51(2) provides: "A liability in respect of any weekly payment of compensation to which this section applies may, with the consent of the worker, be commuted (either in whole or in part) to a lump sum, determined by the Compensation Court, having regard to: (a) any dispute as to liability to pay compensation under this Act; (b) the injury, the age of the worker, and the occupation of the worker at the time of the occurrence of the injury; and (c) the worker s diminished ability to compete in an open labour market." In light of the provisions of s51(1)(c) and (2) it cannot be said that a commuting award is a valuation of the future income stream of possible workers compensation payments. Other factors may impact. Here no evidence was placed 4. (Unreported, Court of Appeal, 6 May 1994, p4-p5). URJ WILLIAMS and ORS t/as HARRIS WHEELER v BODEWES (Stein J) 7 before Hulme J concerning the material put before the Compensation Court in the application for commutation. However, the respondent/plaintiff was asked: "Q. Now, with the money that you received from the workers compensation, what did you do with it? A. I have got a list of things in my briefcase there. I bought a double-decker bus to live in. I actually went up the coast, I travelled up the coast looking for a block of land, because I thought I would be able to put a deposit on a block of land, and I realised that it is all right to have a deposit but you have still got to have a job to go to for the rest of the loan. So with the money I had left I bought a double-decker bus and decked it out as a mobile home so I would have somewhere to live."5 It may well be that application was made to the Compensation Court having in mind some of the factors referred to in s51(1)(c), and plainly the court would have had regard to the matters referred to in s51(2). Further, as the commutation occurred in 1992, it cannot be said to be an assessment of the possible future income stream as at February 1987. It did not purport to be so. A question arises regarding upon whom falls the onus of establishing the deduction factor (b) identified by Mahoney JA. The plaintiff has no interest in doing so, but the defendant in the negligence action does as it reduces the quantum of damage. The onus, in my view, of establishing that factor falls upon the defendant solicitors. They did not seek to discharge that onus. The defendant elected simply to rely upon what they perceived to be an absence of evidence in the plaintiffs case. There was, in truth, no evidence of the value of future workers compensation entitlements as at February 1987. For the reasons I have given, the commuting award of May 1992 was not such evidence. However the plaintiff respondent was content for there to be a deduction of $30,000 in respect of that factor, and the defendant solicitors elected not to call evidence or cross-examine to establish what the true value of such deduction was. In those circumstances I am of the view that Hulme J was entitled to treat the sum of $30,000 as being a proper deduction from the amount of damages to which otherwise the plaintiff u as entitled. The figure is to be regarded as an admission by the plaintiff that the value of workers compensation entitlements as at February 1987 was, at least, $30,000. The defendant proved no greater value. The deduction is to be so regarded because of the manner in which the parties conducted the trial. I would dismiss the appeal with costs. Stein J The respondent, Anthony Ernest Bodewes, was injured in a work related accident on 19 February 1981 at Dubbo. He was an apprentice carpenter engaged in construction work on a two storey motel. He fell down a stairwell and injured his back. In December 1982 he consulted a Mr Dennis of Harris Wheeler, the appellant solicitors. The respondent instructed them to sue his employer for damages in respect of injuries he sustained in the accident. In breach of this duty of care the solicitors failed to issue a statement of claim and the respondent's claim became time barred. Subsequently, the respondent initiated the present action against the solicitors seeking damages for their negligence. At the trial 5. Appeal Book, p50. 8 UNREPORTED JUDGMENTS Hulme J was satisfied on the issue of the appellant's liability. Indeed, their counsel did not address on the issue. It remained for his Honour to assess the quantum of damage. Hulme J found that the respondent had a good cause of action against his former employer, including a breach of reg73 of the Construction Safety Regulations 1950. This finding on the statutory count was the first issue agitated on the appeal. Reg73(3) requires that an employer must: provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8m. The appellants submit that there was no evidence that the respondent fell so that the regulation could apply. The respondent had not proved that he was likely to fall more than 1.8m. Immediately prior to the accident concrete stairs had been constructed running between the ground and first floor levels in two flights with an 180 degree return between flights. There was no handrail on the stairs to guard the gap between the upper and lower flights. The respondent's account of the incident was that as he started to descend the stairs his left foot went down the gap, his left hand slipped down the adjacent wall and his right foot caught on the top step. He fell from that position (very close to the top of the stairs) down the unguarded gap between the upper and lower flights, landing on his back on the bottom two steps of the lower flight. The respondent made a sketch of the stairs and two photographs of similar steps were tendered in evidence. It is apparent that there was evidence before Hulme J upon which he was entitled to find that the respondent fell more than 1.8m. This is the plain inference to be drawn from the respondent's evidence. He fell from almost the level of the first floor slab to the bottom two steps, just above the ground floor. This must have been in excess of 1.8m: The cross-examination of the respondent on the issue did not alter his account of how the accident occurred and the appellants called no evidence on the issue. In my opinion, it was open to the trial judge to find that the respondent had established a good cause of action against his former employer, including a breach of the reg73(3), so any question of contributory negligence became irrelevant. Moreover, it was open to his Honour to find that the likelihood of the respondent succeeding in a claim against his former employer was 'a virtual certainty'. The question remained of the quantification of damage. It was common ground that damages had to be assessed as at the date at which the claim became statute barred, viz February 1987. The major question before Hulme J, as it is on the appeal, was the quantum of damages that the plaintiff would have received as at the notional trial date, in 1987, had his claim against the former employer been heard and determined. No expert evidence was called before Hulme J as to what damages a court might have awarded to the respondent in 1987. His Honour made the assessment himself. The appellants contend that without expert evidence of the likely amount of damages, a judge cannot assess damages, absent agreement on the amount, or agreement to the judge making the assessment himself without expert evidence. Neither counsel was able to refer the court to any authority directly in point. The most pertinent is Scott v Echegaray 1991 ATR 81-120 p 69,129. Mahoney JA recorded that in order to estimate the plaintiff's damages, the judge had to URJ WILLIAMS and ORS t/as HARRIS WHEELER v BODEWES (Stein J) 9 assess the value of her right to sue at common law, assess the value of her worker's compensation rights and deduct the latter from the former. The parties had agreed at the trial how these issues were to be approached. Mahoney JA said that 'in the ordinary course, it would have been necessary for them to establish [these matters] by the evidence of experts'. It is submitted by Mr Nock SC, on behalf of the appellants, that in the absence of agreement or expert evidence, the judge is not entitled to apply his own knowledge and experience and proceed to make assessments of common law damages and the value of the workers' compensation rights. When this submission was made to Hulme J, his Honour accepted that there could be an expectation that expert evidence would be called where the value of workers' compensation rights had to be determined. He added: However I have difficulty in accepting that the same situation applies to the value of a right to sue at common law at some past time. His Honour continued to explain why he held to this opinion. He added: I do not mean by these comments to suggest that expert evidence, particularly as to likely awards at times a significant distance in the past may not be admissible; merely that, unless bound, I cannot accept that such evidence is essential. As the passage I have quoted makes clear it was not necessary in Scott and Ors v Echegaray for the court to consider the necessity for expert evidence and, in those circumstances, I do not regard myself as bound to hold that the absence of expert evidence as to the damages likely to have been awarded had the Plaintiff's claim been prosecuted is fatal to the Plaintiffs case. Hulme J regarded it as appropriate to make his own judgment on the value (as at the notional trial date) of the respondent's right to sue his former employer. Appellants' counsel also relied on a passage in Nikolaou v Papasavas, Phillips & Co (1988-1989) 166 CLR 394 at 399 where Mason CJ referred to remarks of Bray CJ in Tutunkoff v Thiele (1975) 11 SASR 150 at 151. Neither the passage of Bray CJ in Tutunkoff, nor the remarks of Mason CJ, address the issue of the essentiality of expert evidence. Indeed, the reference by Mason CJ to the requirement that the court ascertain 'as best it can' the amount of an award that the plaintiff would have received, may be indicative of the preferred approach. This phrase - as best it can - is derived from Lord Evershed MR in Kitchen v Royal Air Force Association [1958] 2 All ER 241. It was referred to with approval in the judgment of Wilson, Toohey and Gaudron JJ in Johnson v Perez (1988) 166 CLR 351 at 363. Later, at 366, their Honours noted that there are no insuperable obstacles to assessing the damages that a person is likely to have been awarded at an earlier time, (see also Dawson J at 391). It seems to me that nothing said in Nikolaou, Tutunkoff or Johnson leads to the conclusion that expert evidence must be called. Nor do the remarks of Mahoney JA in Scott (referred to earlier) require that conclusion. I find it easy to appreciate that expert evidence will often be appropriate and required. At the same time, I can also see that there will be circumstances where expert evidence will be unnecessary and of no assistance to the trial judge. This will be particularly so where the notional trial date is relatively close to the hearing of the negligence action. The particular circumstances of a case will dictate whether expert evidence is necessary. In the draft judgment of Cole JA, which I have had the benefit of reading, he states that there is no principle of law which establishes that in all cases, evidence of an expert nature quantifying the damages which might have been awarded by a court at the notional trial date, must be called. I respectfully agree. It may be 10 UNREPORTED JUDGMENTS the usual practice. It may often be necessary and of assistance to the trial judge in his task. Equally there will be circumstances where such evidence is unnecessary and unhelpful. In this case, Hulme J was entitled to proceed and make the assessment without expert evidence. Such evidence was not essential, nor did the appellants seek to place any expert evidence before his Honour. The reason for this may well be that the appellants' counsel accepts that his Honour's assessment was 'within the range'. As Hulme J acknowledged, the situation may not be the same with regard to valuing the workers' compensation rights - factor (b) referred to by Mahoney JA in Scott. Such an assessment is not the normal incident or function of a judge of the Supreme or District Court. Absent agreement on the figure, there would normally be the need for evidence. The award of Manser CCJ made in the Compensation Court on 27 May 1992 was tendered before Hulme J. This was a consent award redeeming the respondent's compensation rights arising from the subject accident for the sum of $30,000. The award ordered by the Court is as follows: (1) That the liability of the respondent to make weekly compensation payments to the applicant in respect of incapacity for work resulting from injury/ies referred to in the application for determination may be redeemed in whole as from 19th February 1981 by payment to the applicant of a lump sum of $30,000.00 as determined by the Court pursuant to the provisions of schedule 6 and in addition to any payments made. (2) That the respondent pay the applicant's costs forthwith after they have been agreed or taxed; such costs to include three qualifying fees, fee for counsel for advice on evidence and fees for counsel for two additional conferences at $200.00 each. Hulme J turned to consider any workers' compensation benefits the respondent had derived as a consequence of the accident. He needed to place a value on this and deduct it from the assessment of common law damages in order to avoid double compensation. His Honour noted that: On the Plaintiffs behalf, it was submitted that the appropriate allowance in this regard was 530,000, this being the sum for which the Plaintiff had, on 7 May 1992, redeemed his Workers' Compensation entitlement. The Plaintiff gave evidence that he had not received any Workers' Compensation payments before the redemption. The appellants have contended that the redemption award did not value the respondent's past and particularly future workers' compensation entitlements. It was a value as at May 1992. It did not necessarily represent the value of his compensation entitlements as at the notional date of trial in 1987. I agree with Cole JA that the trial judge was not entitled to accept the redemption award as representing the value of the respondent's compensation entitlements as at 1987 without explanation. Apart from the Award, no evidence was tendered to Hulme J of any of the evidence or material placed before Manser CCJ in the Compensation Court. The respondent recalled giving short evidence before the Compensation Court, but he was not asked what that evidence was. He was, however, asked by his counsel what he did with the lump sum redemption moneys. In essence he said he bought a double-decker bus and converted it to a mobile home in order to live in it. He then travelled along the coast looking for URJ WILLIAMS and ORS t/as HARRIS WHEELER v BODEWES (Stein J) 11 a block of land to buy. He lived for many years with his family in the mobile home. These matters could well have been relevant to a commutation of workers compensation requirements. Before Hulme J it is clear that the respondent was content to have his Honour deduct $30,000 for the offsetting benefits factor. He accepted that this was the value of his compensation rights as at 1987. If the appellants disputed the applicability of the lump sum, then it was open to them to call evidence or to cross-examine the respondent as to the correct value of the deduction. They chose not to do so, but to rely on a submission that the respondent had failed to establish the appropriate deduction. I agree with Cole JA that the onus of establishing the workers' compensation deduction factor in an action for negligence, such as the present, falls on the appellant solicitors. In the absence of any evidence, or relevant cross-examination, Hulme J was entitled to treat the lump sum redemption of $30,000 as the proper deduction from the assessed damages. I propose that the appeal be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: D G Nock SC Solicitors for the appellant: Phillips Fox Counsel for the respondent: D Priestley Solicitors for the respondent: Firths