Workers Compensation Nominal Insurer v Gary Luke by his Tutor Matthew Charles Luke [2011] NSWCA 251

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Workers Compensation Nominal Insurer v Gary Luke by his Tutor Matthew Charles Luke [2011] NSWCA 251 Hearing dates: 19/07/2011 Decision date: 29 August 2011 Before: McColl JA, Campbell JA, Handley AJA Decision: (1) Appeal allowed in part. (2) Judgment for the plaintiff in the District Court for $538, 483.10 set aside save as to costs. (3) The parties to bring in short minutes of orders within 21 days to give effect to this Court's decision that the cost of fund management should be allowed on the assumption that the fund is exhausted at the end of the plaintiff's life expectancy of 26.96 years at the date of trial. (4) The judgment to be substituted in accordance with the short minutes to take effect from 18 June 2010. (5) The appellant to pay 80% of the respondent's costs of the appeal. (6) Liberty to apply for further or other orders. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: DAMAGES - employer's liability - future economic loss - Workers Compensation Act 1987 s 151G - fund management expenses - recoverable DAMAGES - employer's liability - future economic loss - Workers Compensation Act 1987 s 151IA - no recovery for loss of earning capacity after 65 - no bar to fund management expenses after 65 DAMAGES - future economic loss - fund management expenses - expenses not recoverable beyond plaintiff's life expectancy Legislation Cited: Workers Compensation Act 1987 Cases Cited: Campbell v Nangle (1985) 40 SASR 161 Baghdadi v P&M Quality Small Goods Pty Ltd [2008] NSWSC 566 General Motors-Holden's Pty Ltd v Moularas [1964] HCA 39, 111 CLR 234 Malec v JC Hutton Pty Ltd [1990] HCA 20, 169 CLR 638 Rose v Hvric [1963] HCA 13, 108 CLR 353 The Commonwealth v Bourne [1960] HCA 36, 104 CLR 32 The Commonwealth v Thompson [1960] HCA 28, 104 CLR 48 The Nominal Defendant v Gardikiotis [1996] HCA 53, 186 CLR 49 Category: Principal judgment Parties: Appellant: Workers Compensation Nominal Insurer Respondent: Gary Luke by his tutor Matthew Charles Luke Representation: Counsel: Appellant: L King SC and G Sarginson Respondent: J Sexton SC and C Hart Solicitors: Appellant: Hicksons Respondent: Bale Boshev & Associates File Number(s): CA 2010/227898 Decision under appeal Citation: [2010] NSWDC 197 Date of Decision: 2010-06-18 00:00:00 Before: Sidis DCJ File Number(s): 2009/332912