Zampetides v State of New South Wales [2000] NSWSC 829

New South Wales Supreme Court

CITATION : Zampetides v State of New South Wales [2000] NSWSC 829 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20688 of 1997 HEARING DATE(S) : 17 August 2000 JUDGMENT DATE : 23 August 2000

Tassy Zampetides (Plaintiff) PARTIES : v The State of New South Wales (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Mr M McAuley (Plaintiff) Mr P Hall QC/Mr L Gyles (Defendant) SOLICITORS : Paul A Curtis & Co (Plaintiff) Hunt & Hunt (Defendant) CATCHWORDS : modified common law damages - which statutory provision governs the deduction of workers compensation payments - amount to be deducted from awarded damages. Interpretation Act 1987, s 33. Law Reform (Miscellaneous Provisions) Act 1965, s 10, s 10 (1) (c) and (d). Miscellaneous Acts (Workers Compensation) Amendment Act 1987. LEGISLATION CITED : Workers Compensation Act 1926, s 63, s 63 (5). Workers Compensation Act 1987, Pt 5, s 149, s 150, s 151A, s 151B, s 151B (1) (b), s 151N, s 151N (1) and (3), s 151Z, Sch 6. CASES CITED : Kingston v Keprose Pty Ltd (No3) (1987) 11 NSWLR 404. DECISION : See Paragraph 23.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

WEDNESDAY 23 AUGUST 2000

20688 of 1997 TASSY ZAMPETIDES v THE STATE OF NEW SOUTH WALES JUDGMENT 1 In these proceedings, the parties ultimately resolved the question of liability by consent. The plaintiff accepted liability for contributory negligence to the extent of 22.5%. 2 I have already delivered two judgments on questions of damages. These judgments dealt with inter alia those heads of damage which were not resolved by the parties. 3 The defendant was the employer of the plaintiff. He has received payments of worker's compensation. A deduction has to be made from the damages that have been awarded in respect of compensation that has already been paid. 4 There is dispute between the parties as to the amount of the deduction. The defendant says that it should be the full amount of the compensation already paid. The plaintiff says that there should be a pro-rata deduction and that the sum to be deducted would be 77.5% of the payments already made. 5 The court is asked to determine this dispute. It was said to turn on a question of statutory construction. 6 The defendant relies on the provisions of s 151B (1) (b) of the Workers Compensation Act 1987 (the 1987 Act). The section is in the following terms:- " Effect of recovery of damages from employer on payment of compensation