Teuma & Anor v C P & P K Judd Pty Ltd [2007] NSWCA 166

New South Wales Court of Appeal

CITATION: Teuma & Anor v C P & P K Judd Pty Ltd [2007] NSWCA 166

HEARING DATE(S): 25/06/07

JUDGMENT DATE: 17 July 2007

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 5; Basten JA at 91

DECISION: (1) Declare that the limit of the indemnity available to the employer in respect of compensation paid by it to the injured worker, after the judgment in the District Court is satisfied, is an amount of $342,038.72, being the amount of damages less the payment made under the indemnity pursuant to the judgment of the District Court in matter no 4620 of 2005. (2) Otherwise dismiss the appeal and order the Appellants to pay the Respondent's costs of the appeal.

CATCHWORDS: TORTS – NEGLIGENCE – liability – duty of care – whether first appellant had breached his duty of care to employee of the respondent – turns on own facts - REMEDIES – DAMAGES – quantification – gratuitous services – past and future domestic care – concept of 'ordinary give-and-take' of a marital relationship – whether services provided by injured employee's spouse were to be classified as services additional to those as part of the mutual give-and-take of marriage – Roads and Traffic Authority (NSW) v Lolomanaia (2001) 34 MVR 249 and Matchan v Lyons (2004) 40 MVR 466 on this issue not followed – damages for provision of care of family pets – requirement of need – whether the injured employee had proved a need for such services – whether the trial judge erred in finding that, as regards one of three periods for past domestic care and future domestic care, the injured employee's need for domestic assistance was seven hours per week - INTEREST – interest on judgment sum – whether trial judge had taken into account as a discretionary matter the claim made by the appellants that they had been prejudiced in the presentation of their defence on account of the respondent's delay in bringing proceedings - WORKERS' COMPENSATION – indemnification – claim for indemnity under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) – whether respondent entitled to be indemnified in respect of future payments of workers' compensation to the injured employee up to an amount of $342,038.72 (being the capped notional damages sum of $577,334.00 minus the difference between $331,188.06 [being workers' compensation payments that had already been made by the respondent] and $95,892.78 [being an amount time-barred by virtue of s 63(1) of the Limitation Act 1969 (NSW)]) or $246,145.94 (being the notional damages of $577,334.00 minus the payments made of $331,188.06) – whether the statute-barred amount constituted part of the capped damages sum to which the respondent was entitled from the appellants by way of indemnity and should, thus, be deducted. D