WASTE RECYCLING & PROCESSING SERVICES OF NEW SOUTH WALES & ANOR. v. MEAFOU & ORS. [2004] NSWCA 462

New South Wales Court of Appeal

CITATION : WASTE RECYCLING & PROCESSING SERVICES OF NEW SOUTH WALES & ANOR. v. MEAFOU & ORS. [2004] NSWCA 462 HEARING DATE(S) : 01/11/2004 JUDGMENT DATE : 15 December 2004

JUDGMENT OF : Beazley JA at 1; Bryson JA at 57; Campbell J at 58 DECISION : 1. Cross-Appeal allowed in part.; 2. Confirm the judgment with damages assessed in the sum of $313,532.00 in favour of the plaintiff (cross-appellant), verdict accordingly; 3. Set aside the trial judge's orders regarding costs as against the first cross-respondent.; 4. The first cross-respondent to pay the cross-appellant's costs. These costs are to be assessed on an indemnity basis from 11 February 2002 until and including 19 March 2004 (date of judgment of Puckeridge DCJ); 5. The second cross-respondent is liable with the first cross-respondent to pay the cross-appellant's costs of the application for costs heard by Puckeridge DCJ on 19 March 2004. These costs are to be assessed on an indemnity basis.; 6. The cross-respondents to pay the cross-appellant's costs of the appeal. These costs are to be assessed on an indemnity basis from 19 March 2004 until the date of judgment.; 7. The cross-respondents to have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled.

CATCHWORDS : DAMAGES - Past economic loss - Loss of earning capacity - Quantum - Onus - Plaintiff must first establish loss of earning capacity - A party with some loss of earning capacity who has not worked over a period up to trial is not necessarily entitled to damages for total wage loss. - DAMAGES - Superannuation - Assessment of loss of superannuation may be based on amount of employer's contribution. - COSTS - Offer of compromise - Amendment to Statement of Claim to join additional defendant - Offer of compromise not made to defendant - No order for indemnity costs may be made against a party to whom the offer of compromise was not made. District Court Rules 1973 LEGISLATION CITED : Supreme Court Rules 1970 Suitors' Fund Act 1951 (NSW) Superannuation Guarantee (Administration) Act 1992 (Cth) Donovan v. Port Macquarie Base Hospital [1999] NSWSC 1274 Ghunaim v. Bart (2004) Aust Torts Reports 81-731 Manly Council v. Byrne [2004] NSWCA 123 Medlin v. State Government Insurance Commission (1995) 182 CLR 1 CASES CITED : New South Wales Ministerial Corporation v. Wynn (1994) Aust Torts Reports 81-304 Roads and Traffic Authority v. Cremona (2001) 35 MVR 190 South Sydney Council v. Morris (No. 3) [2001] NSWCA 200 Thomson v. Mybner Pty. Limited (2000) 31 MVR 335 Todorovic v. Waller (1981) 150 CLR 402 Welsh v. Cotton Seed Distributors Ltd [2000] NSWSC 801 Waste Recycling & Processing Service of New South Wales (First Appellant/Cross-Respondents) PARTIES : Cleary Bros (Bombo) Pty. Limited (Second Appellant/Cross-Respondents)) Sonny Meafou (First Respondent/Cross-Appellant) Better Homes Removals Pty. Limited (Second Respondent) FILE NUMBER(S) : CA 40165/2004 R.R. Stitt QC/T.M. Rowles (Appellant/Cross-Respondents) COUNSEL : A. Morrison SC/W. Nicholson (First Respondent/Cross-Appellant) G.M. Watson SC/D. Saul (Second Respondent) Sparke Helmore (Appellant/Cross-Respondents) SOLICITORS : Dostalek & Co (First Respondent/Cross Appellant) Hunt & Hunt (Second Respondent)