McDonnell v McAliece [2012] NSWCA 346

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McDonnell v McAliece [2012] NSWCA 346 Hearing dates: 15 October 2012 Decision date: 15 October 2012 Before: Allsop P at [1] Tobias AJA at [19] Decision: 1. Appeal allowed. 2. Judgment in the District Court as to damages and costs be set aside and in lieu thereof order that: (a) judgment be entered for the plaintiff in the sum of $483,854; (b) the plaintiff's costs be payable in accordance with the Workers Compensation Regulation 2010; and (c) such costs be paid by CGU Workers Compensation (NSW) Limited - Agent for the NSW Workcover Scheme. 3. The appellant's costs of the appeal be payable in accordance with Reg 104 of the Workers Compensation Regulation 2010. [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: WORKERS COMPENSATION - damages for past and future economic loss - history of intermittent employment of appellant - history and future plans of appellant to engage in small business - balance of demonstrated earning capacity with future vicissitudes of small business Legislation Cited: Workers Compensation Act 1987 (NSW), s 151G Workplace Injury Management and Workers Compensation Act 1998 (NSW), Pt 6 Cases Cited: Husher v Husher [1999] HCA 47; 197 CLR 138 Kallouf v Middis [2008] NSWCA 61 Category: Principal judgment Parties: Patricia McDonnell (Appellant) Ashley McAliece and Carol King trading as Peninsula Cakes & Pies (Respondent) Representation: D W Elliott (Appellant) G J Parker SC (Respondent) Gerard Malouf & Partners (Appellant) Turks Legal (Respondent) File Number(s): 2012/30892 Decision under appeal Date of Decision: 2011-10-31 00:00:00 Before: Blanch CJDC File Number(s): 2011/213173