Qiao v Jacon Industries Pty Ltd [2003] NSWCA 125

New South Wales Court of Appeal

CITATION : Qiao v Jacon Industries Pty Ltd [2003] NSWCA 125 HEARING DATE(S) : 15 May 2003 JUDGMENT DATE : 15 May 2003

JUDGMENT OF : Giles JA at 1; Santow JA at 27; Ipp JA at 28 DECISION : (1) Appeal allowed; (2) Set aside the judgment and orders for payment of costs ordered by the trial judge; (3) Order that there be a new trial as to damages; (4) No order as to costs of the appeal; (5) Order that the costs of the trial in the District Court abide the result of the new trial.

CATCHWORDS : Assessment of damages - workplace injury - subject to ss 151G and 151H of Workers Compensation Act - claimed against all three defendants - only one likely to have been employer - judgment should have been against only one - should have been agreement on or determination of which was liable - judge assessed 22 per cent of a most extreme case - said from "the table" meant damages of $32,500 - table with those figures not a table as to percentages of extreme case - was table of degrees of permanent impairment - judge's reasoning could not be seen - but on probabilities there was flawed arrival at 22 per cent - return for correction under slip rule not available - new trial as to damages. CASES CITED : Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446. De Qiang Qiao - Appellant PARTIES : Jacon Industries Pty Ltd - First Respondent Nocaj Pty Ltd - Second Respondent Eric Martin Rutten - Third Respondent FILE NUMBER(S) : CA 41211/02 COUNSEL : E G Romaniuk - Appellant G Little SC & G Maddock - Respondents SOLICITORS : Keddies - Appellant Church & Grace - Respondents

LOWER COURT District Court JURISDICTION : LOWER COURT DC 3053/01 FILE NUMBER(S) : LOWER COURT Rein DCJ JUDICIAL OFFICER :