WILLIAMS (TRADING AS HARRIS WHEELER) v BODEWES [1997] NSWCA 345

WILLIAMS (TRADING AS HARRIS WHEELER) v BODEWES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, COLE and STEIN JJA 15 September 1997 and 20 October 1997, 7 November 1997 [1997] NSWCA 345

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.

Mason P I agree with Cole JA and Stein JA.

Cole JA Judgment in this matter was delivered on 1 October 1997. The matter was relisted for further argument on 20 October 1997 at the request of the appellant.

In my judgment, with which Mason P and Stein JA concurred, I held 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."

I was not there distinguishing between the 1926 Act and the 1987 Act. That was apparent from use of the word "Acts", and from my then quoting s15(1) of the 1926 Act dealing with redemption of entitlements, and s51 of the 1987 Act similarly dealing with redemption, although it was called "commutation" under the latter Act. Wrongly, I addressed the matter on the basis that the commutation had occurred under the 1987 Act whereas both parties agree it was a redemption under the 1926 Act. There are differences between the circumstances in which a worker could redeem entitlements under the 1926 Act and circumstances under which such entitlements may be redeemed, now called commuted, under the 1987 Act. However the underlying concepts in a redemption or commutation is that the worker receives a lump sum payment in lieu of his rights to continuing payments. I remain of the view that: