Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62

New South Wales Court of Appeal

CITATION: Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): On the papers

JUDGMENT DATE: 24 March 2009

JUDGMENT OF: Beazley JA at 1; Giles JA at 1; Macfarlan JA at 1

1. Grant leave to the appellant to appeal from the orders of Garling DCJ made on 24 August 2007; 2. Allow the appeal; DECISION: 3. Set aside the verdict for the respondent; 4. Set aside the order for costs made at first instance in favour of the respondent; 5. Verdict and judgment for the appellant in the sum of $166,083. The Court notes the agreement between the parties that the respondent is to have a statutory credit in the sum of $13,981; 6. No order as to costs, with the intent that the parties are to bear their own costs of the hearing before Garling DCJ and of the appeal.

CATCHWORDS: COSTS - work injury - mediation - offers of compromise - damages less than claimant's/appellant's final offer and more than defendant's/respondent's final offer at the conclusion of mediation - costs governed by Workplace Injury Management and Workers Compensation Act 1998, s 346 and Workers Compensation Regulation 2003, rr 89-91, 93

Civil Procedure Act, s 98 Legal Profession Act 1987, s 198D LEGISLATION CITED: Uniform Civil Procedure Rules, Pt 42 Workers Compensation Act 1987, ss 2A, 151A Workers Compensation Commission Rules 2003, r 88 Workers Compensation Regulation 2003, rr 89-91, 93 Workplace Injury Management and Workers Compensation Act 1998, ss 4, 60(2), 318B, 346