Parkview Constructions Pty Ltd v Abrahim (No. 2) [2014] NSWCA 117

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Parkview Constructions Pty Ltd v Abrahim (No. 2) [2014] NSWCA 117 Hearing dates: On the papers Decision date: 09 April 2014 Before: McColl JA at [1]; Gleeson JA at [2]; Sackville AJA at [3] Decision: 1. Orders 1-6 made by the Court on 20 December 2013 are confirmed except that Order 4 is amended by the omission of the words "in part". 2. In addition to the Orders of Adams J set aside by Order 5 made by the Court on 20 December 2013, set aside Order 2 made by Adams J on 23 November 2012. 3. In lieu of Orders 1-8 made by Adams J on 23 November 2012, make the following orders: 1. Judgment in favour of the plaintiff ("Mr Abrahim") against the first, second and third defendants with liability amongst the defendants to be apportioned as follows: (a) the first defendant, Parkview Constructions Pty Limited ("Parkview") - one half; (b) the second defendant, Erect Safe Scaffolding (Australia) Pty Limited ("Erect Safe") - one third; (c) the third defendant, Blue Star Painting Solutions Pty Limited ("Blue Star") - one sixth; 2. Judgment against Parkview in the sum of $1,045,271.40. 3. Judgment against Erect Safe in the sum of $696,847.60. 4. Judgment against Blue Star in the sum of $133,875.84. 5. Judgment in part for the cross-claimant on the first cross-claim (Blue Star) against the first and second cross-defendants (Parkview and Erect Safe) on the first cross-claim. 6. Judgment in part for the cross-claimant on the second cross-claim (Erect Safe) against the first and second cross-defendants (Parkview and Blue Star) on the second cross-claim. 7. Judgment in part in favour of the cross-claimant on the third cross-claim (Parkview) against the first and second cross-defendants (Erect Safe and Blue Star) on the third cross-claim. 8. The judgment on all those cross-claims referred to in Orders 5, 6 and 7 above to be effected by the following: (a) payment of $60,873.75 by Parkview to Blue Star; (b) payment of $40,582.51 by Erect Safe to Blue Star. 9. The defendants pay, in addition to the judgment sums referred to, an amount to the plaintiff pursuant to the principles in Fox v Wood regarding tax paid on workers compensation benefits, such sum to be calculated on the amount of taxation on weekly compensation benefits paid up to date of final judgment in addition to the amount that was calculated in the assessment of damages as at November 2012, such an amount to be agreed and in default of agreement liberty to approach the Court. 10. Parkview and Erect Safe pay interest to Blue Star on workers compensation payments made by Blue Star between 4 February 2014 and the date of final judgment entered by the Court of Appeal, at the rate prescribed by s 101 of the Civil Procedure Act 2005 (NSW), such interest to be borne in the proportions of sixty (Parkview) to forty (Erect Safe). 11. Each defendant pay to the plaintiff interest on the final judgment figure (after the final Fox v Wood component is added and after the workers compensation payments received by Mr Abrahim have been deducted), from the date of judgment of the primary Judge (23 November 2012), at the rate prescribed by s 101 of the Civil Procedure Act 2005 (NSW). 4. Parkview pay eighty per cent of Mr Abrahim's costs of Parkview's appeal. 5. Parkview pay Erect Safe's costs of Parkview's appeal. 6. Blue Star pay Parkview's costs of its appeal, insofar as the costs relate to Parkview's appeal against the decision in favour of Blue Star. 7. Erect Safe pay eighty per cent of Mr Abrahim's costs of Erect Safe's appeal. 8. Parkview pay Erect Safe's costs of its appeal insofar as the costs relate to the apportionment of liability to Parkview. 9. Blue Star pay Erect Safe's costs of its appeal, insofar as the costs relate to Erect Safe's appeal against the primary Judge's decision in favour of Blue Star. 10. Mr Abrahim pay Blue Star's costs of its cross-appeal against him. 11. There be no order as to costs in respect of Mr Abrahim's cross-appeal against Blue Star. [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 - effect of employer's liability on apportionment - necessary to recalculate damages for economic loss following a finding of liability against the employer - application of Workers Compensation Act 1987 (NSW) s 151Z