SURESH v JACON INDUSTRIES PTY LTD [2007] NSWCA 317

New South Wales Court of Appeal

CITATION: SURESH v JACON INDUSTRIES PTY LTD [2007] NSWCA 317

HEARING DATE(S): 30 October 2007 JUDGMENT OF: Basten JA at 1; Mason P at 17

EX TEMPORE JUDGMENT DATE: 30 October 2007

DECISION: Appeal dismissed with costs.

CATCHWORDS: APPEAL - damages - challenge to assessment

LEGISLATION CITED: District Court Act 1973 (NSW), s 127 Supreme Court Act 1970 (NSW), s 75A

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 CASES CITED: Suresh v Jacon Industries Pty Ltd [2005] NSWCA 202 Warren v Coombes (1979) 142 CLR 531

PARTIES: Kumuda Suresh - Appellant Jacon Industriesl Pty Ltd - Respondent

FILE NUMBER(S): CA 40556/06

COUNSEL: D.W. Elliott - Appellant D.J. Hooke - Respondent

SOLICITORS: Stephen Smart & Associates - Appellant Edwards Michael Moroney Lawyers - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3677/2000

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

LOWER COURT DATE OF DECISION: 10 August 2006

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40556/06 DC 3677/2000

MASON P BASTEN JA

30 October 2007 SURESH v JACON INDUSTRIES PTY LTD Judgment 1 BASTEN JA: In February 2000 the present Appellant commenced proceedings in the District Court for damages against the defendant in relation to the death of her late husband, who was fatally injured in a work accident whilst employed by the defendant (which is the present Respondent). His death occurred on 30 December 1997, whilst operating a lathe at the factory. 2 The matter first came before this Court in 2005, the District Court having dismissed her claim and given judgment for the defendant. The appeal was upheld and the matter remitted to the District Court for an assessment of damages: Suresh v Jacon Industries Pty Ltd [2005] NSWCA 202. That assessment was undertaken by Judge Armitage, who delivered judgment at the end of the further trial on 10 August 2006. 3 The schedule of damages prepared by the Appellant indicates that she seeks an increase in the amount allowed by the trial of $710,018 to an amount of $808,069. The difference in the two amounts, which is a fraction under $100,000, is apparently covered by a reduction in the amount claimed on account of past and future domestic assistance. However, the grounds of appeal allege four errors, which have been identified in the Appellant's written submissions in the following terms: