Ryan & another v A F Concrete Pumping Pty Ltd & another [2013] NSWSC 113

Supreme Court New South Wales

Medium Neutral Citation: Ryan & another v A F Concrete Pumping Pty Ltd & another [2013] NSWSC 113 Hearing dates: 3-8 February 2013; 11-14 February 2013 Decision date: 26 February 2013 Before: Adamson J Decision: 1. Judgment for the first and second plaintiffs against the first defendant. 2. Judgment for the second defendant on the plaintiff's claim. 3. Judgment for EML in its cross-claim against the first defendant for amounts paid by way of workers compensation to or for the benefit of the first plaintiff, with interest. 4. All other cross-claims dismissed. 5. Direct the parties to bring in short minutes which calculate the amount of the judgments and cross-claims in accordance with these reasons within fourteen days. 6. Costs of the proceedings and of all cross-claims reserved. 7. Failing agreement on costs, direct the parties to approach my Associate within seven days for a hearing date for argument on costs. Catchwords: TORTS-Negligence-Personal Injury-Damages-Loss of Earning Capacity-Husher v Husher TORTS-Per Quod Servitium Amisit-Damages-Availability of loss of profits as measure of damages Legislation Cited: Civil Liability Act 2002, s5B, s5C, s5D, s5R, s12, s13, s18 Social Security Act 1991 (Cth), s43 Workers Compensation Act 1987, s34, s151H, s151I, s151Z Cases Cited: -Andar Transport Pty Limited v Brambles Limited [2004] HCA 28; (2004) 217 CLR 424 -Attorney-General for New South Wales v The Perpetual Trustee Company Ltd [1952] HCA 2; (1952) 85 CLR 237 -Barclay v Penberthy [2012] HCA 40; (2012) 86 ALJR 1206 -Commissioner for Railways (NSW) v Scott [1959] HCA 29; (1959) 102 CLR 392 -Dib Group Pty Limited trading as Hill & Co. v. Cole [2009] NSWCA 210 -Fuller v K & J Trucks Coffs Harbour Pty Ltd [2006] NSWCA 88; 67 NSWLR 516 - Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 -Knauer v Transfield Pty Limited [2005] NSWSC 176 -Leveridge v Witten (Court of Appeal, 14 September 1979, unreported) -Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 -Marinovski v Zutti Pty Ltd [1984] 2 NSWLR 571 -Mercantile Mutual Insurance Co Ltd v Argent Pty Ltd (1972) 46 ALJR 432 -Spargo v Haden Engineering Pty Ltd [1993] SASC 3793; 60 SASR 39 -State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 Texts Cited: H. Luntz Assessment of Damages for Personal Injury and Death (4th edition) Category: Principal judgment Parties: Jeffrey Ryan (First Plaintiff) Reliance Pools International Pty Ltd (Second Plaintiff) A F Concrete Pumping Pty Ltd (First Defendant) GIO Limited Ltd (Second Defendant) Employers Mutual NSW Ltd (Cross-Defendant) Representation: Counsel First and Second Plaintiff: RA Cavanagh SC and CJ Callaway First Defendant: AB Parker and AR Davis Second Defendant: N Polin Cross-Defendant: S Maybury Solicitors Gillis Delaney (First and Second Plaintiff) Walker Hedges & Co (First Defendant) Gadens Lawyers (Second Defendant) Edwards Michael Lawyers (Cross-Defendant) File Number(s): 2010/00408063 Publication restriction: Nil