QBE Workers Compensation (NSW) Ltd v Pearsall [2005] NSWCA 278

New South Wales Court of Appeal

CITATION: QBE Workers Compensation (NSW) Ltd v Pearsall [2005] NSWCA 278

HEARING DATE(S): 21/06/05

JUDGMENT DATE: 1 September 2005

JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; Brownie AJA at 3

DECISION: Appeal dismissed with costs.

CATCHWORDS: Damages - no question of principle.

QBE Workers Compensation (NSW) Ltd PARTIES: Harry Pearsall

FILE NUMBER(S): CA 40691/04

A: Mr J E Maconachie QC/Mr I Judd COUNSEL: R: Mr L King SC/Mr K Pierce

A: Hunt & Hunt SOLICITORS: R: Roach & Halligan

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 20901/01

LOWER COURT JUDICIAL OFFICER: Smart AJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40691/04 CL20901/01

BEAZLEY JA IPP JA BROWNIE AJA

Thursday 1 September 2005 QBE WORKERS COMPENSATION (NSW) LTD v HARRY PEARSALL Judgment 1 BEAZLEY JA: I agree with Brownie AJA. 2 IPP JA: I agree with Brownie AJA. 3 BROWNIE AJA: The respondent suffered personal injury whilst in the course of his employment by Bitly Holdings Pty Ltd ("Bitly"). He successfully sued the appellant, as the insurer of Bitly, for damages. There is no need to mention the circumstances in which he recovered judgment directly from the appellant, since only one ground of appeal was argued, so far as concerns any question about liability. 4 The appellant submitted that the only case that the respondent pleaded, and the only case that he conducted against it at trial, was that his injury was the result of the negligent conduct of Bitly in having an unsafe system of work, whereas the sole basis upon which the learned trial judge, Smart AJ, found against the appellant was that a Mr Whittington, another employee of Bitly, was guilty of a casual act of negligence. 5 The respondent was injured when he and Whittington, working together, attempted to move a heavy object. At trial, there were several questions in contention as to how the injury occurred, and one of the questions was whether the lifting operation had been properly coordinated. His Honour said that "the lift was not adequately coordinated as a team effort", and that there was not "any system of work to ensure that lifts were adequately coordinated", and that the respondent had made out a case, identified in the amended statement of claim, "that Bitley had failed to devise, maintain and ensure a safe system of work". 6 Whilst his Honour may be taken to have found Whittington to have been negligent, his findings do not justify the contention that the only negligence for which Bitly and the appellant were responsible was some casual act of negligence on the part of Whittington. 7 The real issues on appeal concerned the assessment of damages, focussing upon three elements in the damages that were assessed: the damages awarded for impairment of earning capacity prior to the date of judgment, the damages awarded for impairment of earning capacity after the date of judgment, and the damages awarded for out of pocket expenses expected to be incurred after the date of judgment. I will deal with the first two of these matters together, as the evidence largely overlaps.