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: "as the commutation (which strictly should read redemption) 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." There remained the question upon whom fell the onus of establishing the deduction factor, being the value of the workers compensation entitlements. I held it lay upon the appellant and that failing its discharge of that onus, Hulme J was entitled to adopt the figure of $30,000 for which the respondent's workers compensation entitlements had in fact been redeemed in May 1992. I said that: "There was, in truth, no evidence of the value of future workers compensation entitlements as at February 1987." When the matter was further argued, Mr Nock SC for the appellant, said that there was such evidence, namely, that it had been agreed that the maximum amount which a worker could receive as at February 1987 was $155 per week 2 UNREPORTED JUDGMENTS gross. He further said that converted to $140 per week net, and that applying the 3 percent tables, and the reasoning in Tipper v Williams! that capitalised to a sum of $183,000. He then argued that as such a figure was greater than the amount of future economic loss found by Hulme J, there should have been no element for future economic loss in the damages award. I do not agree with those submissions. First, there was no agreement that the respondent was entitled to $155 gross. The only agreement was that that was the maximum amount payable to a worker under the Act as at February 1987. The particular worker's entitlement was not addressed. Accordingly there was no basis for assuming that the respondent was entitled to the maximum payment. The appellant is not entitled to make that assumption so as to magnify the quantum of future workers compensation payments for the purpose of deducting it from common law damages. Second, there was no evidence that $155 per week gross reduced to $140 net. I remain of the view that there was no evidence of the respondent's future workers compensation entitlement as at February 1987 and that, in those circumstances, the onus being on the appellant to establish the correct deduction if it were not content to accept a deduction of $30,000 as the respondent plainly was, the challenge to the decision of Hulme J was unsuccessful. I would confirm the dismissal of the appeal with costs, and lift the stay on entry of the judgment granted by this Court on 20 October 1997. Stein JA I agree with Cole JA. Appeal dismissed with costs and stay of entry lifted. 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 1. Unreported, Court of Appeal, 6 May 1994