Jones v Eagle Ford P/L [No 2] [2000] NSWSC 1162

New South Wales Supreme Court

CITATION : Jones v Eagle Ford P/L [No 2] [2000] NSWSC 1162 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20009/99 15/11/00 16/11/00 HEARING DATE(S) : 17/11/00 27/11/00 29/11/00 JUDGMENT DATE : 29 November 2000

PARTIES : Elviera Jones (Pl) Eagle Ford Pty Ltd trading as Thomson Automotive (Def) JUDGMENT OF : Kirby J

COUNSEL : P Semmler QC/J Jobson (Pl) J G Stewart (Def) SOLICITORS : G J Sharah Henville (Pl) McCulloch & Buggy (Def) CATCHWORDS : Interest on Verdict DECISION : Ref para 12

THE SUPREME COURT Extempore - Checked OF NEW SOUTH WALES COMMON LAW DIVISION

KIRBY J

Wednesday 29 November 2000

20009/99 - ELIVIRA JONES v EAGLE FORD PTY LTD t/as THOMSON AUTOMOTIVE

JUDGMENT [No 2] (On Interest)

1 HIS HONOUR: This matter proceeded before me commencing on 15 November 2000. I reserved judgment on 17 November and it was delivered on 27 November 2000. When delivering judgment I identified a number of issues which could not then be resolved. Some of those issues have since been discussed between the parties and agreed. 2 One issue related to the Fox v Wood component which has been agreed at $10,738.49. That sum should be added to the list of amounts included in the plaintiff's award set out in para 119 of my judgment. 3 Apart from that, there has been agreement on superannuation which has been recalculated as I requested. The total amount in accordance with the formula is $43,739.33. That sum covers both past and likely future superannuation entitlements. That amount should likewise be added to the summary of findings in para 119. 4 The only amount which was not agreed and which has been the subject of submissions before me today, concerned interest on past earnings. In respect of that issue, the plaintiff claims interest in accordance with the amounts specified in the Supreme Court Rules. 5 Mr Willoughby, appearing for the defendant, resists that claim. The issue falls to be determined in accordance with s 151M(4)(a) of the Workers Compensation Act 1926. In broad terms, it requires me to consider whether or not the defendant's conduct in its approach to the case and the making of offers of settlement were such that in all the circumstances interest should not be awarded. 6 There is a formula in the section whereby if the amount awarded exceeds by a margin of 20 per cent any offer of settlement by the defendant, then the plaintiff is entitled to interest subject to the position of the defendant in the respects I have identified, that is to say, the defendant is not in a position to make an assessment of the claim or to offer what might be thought to be a realistic sum for whatever reason, then interest ought not be awarded. 7 In this case Mr Willougby on behalf of the defendant puts a number of arguments. The first is that from the viewpoint of the defendant there was some doubt concerning the way in which the accident occurred. Indeed, he points to findings made by me in which I differ from the version given by the plaintiff by finding that she had not fallen, but had rather jerked her back, as she described to various doctors, soon after the incident occurred. The defendant says, therefore, that it was appropriate that it should discount her version of events. 8 Secondly, again from the viewpoint of the defendant, there was material available to the defendant which suggested that the plaintiff was able to walk. Its assessment of damages, therefore, was designed to reflect appropriate compensation for a person who has undergone serious operations, including spinal fusion. The offer of $450,000 made by the defendant in those circumstances was reasonable and, having regard to the terms of s 151M(4)(a) interest ought not be awarded. 9 However, it seems to me that so far as liability was concerned, whilst true it is that there was an issue concerning whether or not the plaintiff fell, there seemed no issue that the plaintiff suffered a serious back injury whilst at work when she was walking down the ramp. That history was repeatedly given to all doctors and even those doctors who received the history which did not include her falling to the ground, nonetheless connected her disability, leaving aside Dr Matheson, with the problems which ensued. The defendant as well, I note, paid the plaintiff workers compensation. I do not believe that the doubts that may have existed in respect to the issue of liability warrant a departure from the award of interest to the plaintiff under the section. 10 Turning to the second issue, it seems to me that the defendant was in possession of a wealth of information from an early stage from a variety of doctors, some qualified by the defendant and some by the plaintiff, which suggested that she was severely disabled, whether for organic reasons or psychiatric reasons. Whilst the investigation suggested otherwise, it became rapidly apparent, certainly once the film had been lost, that there would be issues as to identification of the plaintiff. I repeat, I find it surprising that the workers compensation insurer did not undertake further investigations in those circumstances to confirm their earlier suggested findings. Perhaps they did and I did not learn of it, but however that may be, I do not believe overall, having regard to the evolution of knowledge as revealed by the various reports which are documented in the judgment, that the defendant was not in a position to make an appraisal of the claim more realistic than which ultimately was made. 11 It seems to me appropriate in the circumstances that interest should be awarded and I therefore award it. It has been calculated as $9135.54. That sum likewise will be included in the award. 12 The defendant paid workers compensation totalling $220,157.77. They have pleaded as a defence that should be deducted from the amount awarded. I so deduct that amount and there will therefore be a verdict for the plaintiff in the sum of $1,339,525 plus costs. The exhibits may be returned. **********