Kerney v Mead & Anor [2011] NSWSC 692

Supreme Court New South Wales

Medium Neutral Citation: Kerney v Mead & Anor [2011] NSWSC 692 Hearing dates: 05/07/2011 Decision date: 05 July 2011 Jurisdiction: Common Law Before: Garling J Decision: 1. Judgment for the plaintiff in the sum of $1,756,219. 2. Defendants to pay the plaintiff's costs. Catchwords: DAMAGES – calculation of annual increase in wages – base earnings without overtime of comparable employee Category: Procedural and other rulings Parties: Bruce Walter Edward Kerney (P) John Mead (D1) Scott Staden-Gaffney (D2) Representation: Counsel: Mr M R Aldridge SC (CP) Mr K P Rewell SC (D1 & D2) Solicitors: Brydens Law Office (P) Sparke Helmore Lawyers (D1 & D2) File Number(s): SC 2009/297723

EX TEMPORE JUDGMENT 1HIS HONOUR : On 3 June 2011, I delivered judgment in this matter and gave directions with respect to the calculation by the parties and their accounting experts of the damages due to the plaintiff. 2The parties have been unable to agree on the calculation of damages. The central focus of their disagreement has been the accurate determination of the annual percentage increase in the wages of Mr Wellington who I determined was in relevant respects, not including the quantity of overtime undertaken, a comparable employee. 3In [177] and [178] of my judgment on 3 June 2011 I said this: "177 I do not think it is safe to regard all Mr Wellington's net earnings, as being comparable to Mr Kerney's net earnings. 178 However, I see no reason why the percentage increases in earnings which Mr Wellington received, as an employee of Telstra engaged in substantially the same work as Mr Kerney would not be those which Mr Kerney would also have received." I concluded in [179] of my judgment with these terms: "Accordingly, I am satisfied that the percentage increase in the net earnings of Mr Wellington is the appropriate rate of increase to apply to Mr Kerney's earnings from Telstra to calculate his most likely earnings from Telstra if he had not been injured." 4Having regard to my earlier findings about the disparity in the overtime earnings between Mr Kerney and Mr Wellington and the finding that their net earnings were not comparable, I had thought that it was tolerably clear that the basis for the calculation of the relevant percentage increase was the base earnings without overtime of Mr Wellington. However, the submissions from the parties make it obvious that this was not as clear from my judgment as I had thought that it was and it was certainly not as clear as that which I intended to convey. 5On the basis that what I intended to convey was that the proper basis for determining the percentage increase in annual earnings was the base earnings then the report of Mr Ivey of 21 June 2011 has approached the calculations on the basis which I intended. I accept his calculations. 6The report of Furzer Crestani Services dated 30 June 2011 puts forward two alternative calculations, both of which include overtime as a component of those calculations. The report does not reflect what I intended to convey in my reasons for judgment and I do not accept it as the appropriate basis for the ensuing calculations. 7It follows that I accept the short minutes of order proposed by the defendants. I make the following orders: 1. Judgment for the plaintiff in the sum of $1,756,219. 2. Defendants to pay the plaintiff's costs.