Ferreira v Zebra Stoneworks Pty Limited & Anor [2001] NSWSC 817

New South Wales Supreme Court

CITATION : Ferreira v Zebra Stoneworks Pty Limited & Anor [2001] NSWSC 817 FILE NUMBER(S) : SC 20254/00 HEARING DATE(S) : 13/08/01, 14/08/01 JUDGMENT DATE : 21 September 2001

PARTIES : Manuel Ferreira Zebra Stoneworks & Anor JUDGMENT OF : James J at 1

COUNSEL : C T Barry QC, H W H Bauer A C A Bridge SC, A Jungwirth SOLICITORS : McClellands Solicitors W.K. Chambers Solicitors CATCHWORDS : Workers Compensation Act Pt 5 - employers' liability - assessment of damages LEGISLATION CITED : Workers Compensation Act 1987 Watts v Rake (1960) 108 CLR 158 CASES CITED : Purkess v Crittended (1965) 114 CLR 164 Medlin v The State Government Insurance Commission (1994-1005) 182 CLR 1 Husher v Husher (1999) 197 CLR 138 DECISION : Damages assessed - making of final orders deferred

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20254/00

James J

Friday 21 September 2001 FERREIRA v ZEBRA STONEWORKS PTY LIMITED

Judgment Introduction 1 This is an action for damages for personal injuries which the plaintiff claims he sustained in an accident which occurred on 22 July 1997. 2 The proceedings were originally brought against two defendants, namely:-

1. The first defendant Zebra Stoneworks Pty Limited on the basis that the plaintiff had been an employee of the first defendant at the time of the accident and the accident had occurred in the course of the plaintiff's employment by the first defendant.

2. The second defendant, an individual named Daniel Bustamante on the basis that he had been supervising the plaintiff at the time of the accident. 3 In proceedings brought by the plaintiff in the Compensation Court against the first defendant it was found by the Compensation Court that at the time of the accident the plaintiff had been an employee of the first defendant and the accident had occurred in the course of his employment by the first defendant. At the beginning of the hearing before me I was informed that counsel for the plaintiff and counsel for the first defendant were in agreement that this finding by the Compensation Court gave rise to an issue estoppel which precluded either the plaintiff or the first defendant from disputing that at all material times the plaintiff was employed by the first defendant. 4 I was also informed by counsel for the plaintiff and counsel for the first defendant, that, after the proceedings had been commenced, Mr Bustamante had died. I acceded to an application by counsel for the plaintiff that I enter a verdict in favour of the second defendant against the plaintiff. 5 Up until the commencement of the hearing before me the first defendant had denied that it was under any liability to the plaintiff. However, during the hearing before me I was informed by counsel for the first defendant that liability was no longer in issue and was admitted by the first defendant. 6 In its defence the first defendant had pleaded contributory negligence as a defence. However, at the hearing I was informed that the defence of contributory negligence was no longer pressed. 7 Having regard to the various matters I have just stated, all that remains to be done is for me to assess the damages to which the plaintiff is entitled. It was common ground between counsel for the plaintiff and counsel for the first defendant that the assessment of damages was subject to the provisions of Part 5 of the Workers Compensation Act 1987. 8 The only oral evidence at the hearing was that given by the plaintiff. Counsel for the plaintiff and counsel for the first defendant each tendered a number of documents, consisting mainly of medical reports. None of the doctors whose reports were tendered gave oral evidence.