Hennessy v Patrick Stevedores Operations & Anor (No 2) [2014] NSWSC 1850

Supreme Court New South Wales

Medium Neutral Citation: Hennessy v Patrick Stevedores Operations & Anor (No 2) [2014] NSWSC 1850 Hearing dates: 20/12/2014 Decision date: 20 December 2014 Jurisdiction: Common Law Before: Campbell J Decision: See paragraph [27] Catchwords: Correction of slip - costs - stay- no question of principle Cases Cited: Fox v Wood (1981) 148 CLR 438. Category: Costs Parties: Shane William Hennessy (Plaintiff) Patrick Stevedoring (First Defendant) FBIS International Protective Serivces (Aust.) Pty Ltd (Second Defendant) Representation: Counsel: PM Khandhar with DW D'Souza (Plaintiff); TGR Parker SC with D Talintyre (First Defendant) P Perry (Second Defendant) Solicitors: Brydens Lawyers (Plaintiff) Piper Alderman (First Defendant) Goldbergs Lawyers (Second Defendant) File Number(s): 2009/335823

EX TEMPORE Judgment (REVISED) 1I pronounced orders and published reasons for my decision in this matter on 2nd December 2014. 2I informed the parties at that time that the reasons I then handed down should be treated essentially as draft reasons because I had not had the opportunity to finish revising the reasons for typographical or syntactical errors prior to pronouncing the orders. That was done later that day and my judgment was published on caselaw a day or two later. 3In revising the reasons, I did split one paragraph which seemed to me to be syntactically infelicitous; otherwise I confined myself to correcting errors. 4There was one patent mistake which I picked up when I reviewed the reasons which relates to the discount rate I adopted on the head of damage for future domestic assistance. I did not correct that during the process of revision because I had allowed the parties liberty to apply in respect of arithmetical and other errors of a limited type which might appear in my damages calculations. The parties have drawn that slip to my attention. The reason why it was necessary for me to reserve that liberty is because of the long delay, for which I have already apologised to the parties, in giving my judgment. It was obvious that some matters would be out of date and would need to be adjusted. 5There were some other matters that the parties drew to my attention. For instance, for the future I adopted the multiplier appropriate to 35 years and the parties now agree that it should have been 34 years. There are other matters of that type which are the subject of agreement between the parties and I will amend my orders in accordance with their agreement. 6The three matters of a more substantial type which remain in dispute are the following: one, the approach I took to the Fox v Wood component of the damages; two, an outstanding costs question in relation to the adjournment of the proceedings on 4 and 5 June 2013; and three, the first defendant's application for a stay of the judgment against it pending it bringing an appeal. 7The argument in relation to Fox v Wood, which is dealt with in my judgment at paragraphs 196 to 198, is really advanced by the second defendant, the employer. 8In his written submissions Mr Perry of counsel argued against the proposition advanced by the plaintiff that I should adopt a broad approach given that the evidence put forward about the amount of income tax deducted from workers' compensation payments was manifestly incorrect. At paragraph 197 I said this: The tax figures shown in Exhibit EE, with respect, cannot be correct, even allowing for the more generous marginal tax rates for lower income earners current these days. The second defendant does not disagree with the correctness of that statement. 9However the second defendant's approach is essentially that the Fox v Wood component, although not properly characterised as such in legal principle, is a bookkeeping entry to ensure that the plaintiff is not any worse off, after one takes account of the effect of the recovery provisions of the Workers' Compensation legislation upon a receipt of damages. That is to say common law damages are assessed by looking at net income but from those damages a plaintiff has to repay gross amounts paid as weekly payments of compensation which have been subject to income tax. It is that inconsistency which underpins the statement of principle enunciated by the High Court in Fox v Wood (1981) 148 CLR 438. 10At the same time the employer who is a party to these proceedings liable to pay damages to the plaintiff should not be any further out of pocket either by adoption of too rough and ready an approach to the application of the compensatory principle in cases such as this. 11There is force in that argument. Doubtless the tax deducted from the benefits, either by the employer when the employer was the party paying them direct to the plaintiff, or by the insurer subsequently, should be capable of precise calculation and accordingly, I should give the parties more time to engage in that precise calculation and reach agreement or bring forward the precise evidence. 12Mr Perry also argues that the liberty should be extended to allow that to happen, especially given that the first defendant has made it clear it proposes to appeal. 13The arguments are finely balanced. As attractive as the argument is, and attractively as it was presented, I am not persuaded that in the interests of justice I should allow any further time for more precision to be brought to bear. I appreciate that, as I have stated, the delay in giving judgment has given rise to a particular circumstance which is relevant. On the other hand, the time for bringing forward the precise evidence, if it was available, was at the trial and the parties have had a further opportunity in the last two weeks to bring forward any material that was relevant. I am not criticising anyone but I think the better approach is to adhere to the considered decision I made in my judgment rather than varying it now. 14As I said in my judgment, the first defendant did not substantially disagree with the approach to be taken to this head of damages advanced by the plaintiff, which I accepted. 15Accordingly, any short minutes brought in should reflect the approach enunciated in my judgment at paragraph 197. I reiterate that where the evidence before me was clearly incorrect, it is appropriate to take a broad approach to the assessment of individual heads of damage. 16I turn then to the question of costs. There were essentially two adjournments of the trial. The first involved the loss of in excess of half a day on 4th June 2013. That time was lost because the plaintiff's legal representatives wished to consider their position as to whether any further evidence would be called in relation to the liability issue. 17The second adjournment occurred on 5th June. That adjournment was necessary for the plaintiff's legal advisors to put their medical evidence in order. Essentially the plaintiff's lawyers had not picked up that the history received by the qualified doctors did not accord with the contemporaneous medical evidence put together by the first defendant's lawyers in preparation of the matter for hearing, even though a report from Dr Schutz had been served prior to the commencement of the hearing which altered his opinion completely on the basis of his consideration of that contemporaneous material. 18With respect, it should have been obvious to any trained legal mind in considering that report that the battle lines had altered and that there was now a real issue about medical causation in the case as detailed by me in my previous judgment. 19When I allowed the adjournment, I reserved the questions of costs thrown away but at pages 276 and 277 of the transcript, there is a discussion about costs generally. I indicated I was favourably disposed to the first defendant's application for obvious reasons. During the course of that discussion, I said this to learned senior counsel for the plaintiff: I...will ask you Mr Lidden why I should not order your solicitors to pay the costs thrown away by yesterday's adjournment. Mr Lidden SC answered: The solicitors are agreeable to that course your Honour but I ask that that not be done until the end of the case. Because effectively what has happened is two hours have been lost and we will know a lot better at the end of the case what that two hours means. 20Although Mr Lidden's very proper concession related to the costs of 4th June, I am rather inclined to think that it covers the question of all costs thrown away by the adjournment. After all, it was after I had reserved those costs that that discussion took place, and I did not understand Mr Lidden to be suggesting that some different consideration might apply in relation to the costs lost by reason of the adjournment granted on 5th June. 21In any event, it could hardly be expected that the plaintiff himself would pick up the change in position of Dr Schutz given his lack of scholastic achievement. It is doubtful, given the course of the cross-examination, that he had read any of this material that had been so carefully put together by the lawyers for the first defendant. If he had read it, he could have hardly given some of the answers he gave. 22I propose to rely upon the concession of Mr Lidden to order that the plaintiff pay the first and second defendants' costs thrown away by reason of the adjournments which occurred on 4 and 5 June 2013. But I also propose to order that his solicitors indemnify him in respect of that liability. 23I discussed in the course of argument whether that order should be made without first, of course, giving the solicitors an opportunity to be heard in their own right if they so desired. I understand that Mr Khandhar of counsel conceded that that necessary step was not called for in this case in the light of Mr Lidden's proper concession and I accept his argument about that. 24I turn then to the third question which is the question of a stay. It is the established practice of the Court of Appeal in personal injuries litigation where a defendant bona fide wishes to appeal from a decision about liability in a personal injuries case, that a stay is granted almost as a matter of course without the need to delve into the particular circumstances in detail. That is because in most, but not all, personal injuries cases there is no issue that the plaintiff is impecunious, and that if the defendant satisfies the judgment, its right to appeal would be rendered nugatory by dissipation of the funds by a plaintiff who is unable to repay them. Whether that general statement is correct, it is certainly true in this case and that circumstance engages the principles usually considered when an application for a stay is made. 25Certainly the plaintiff is prima facie entitled to the fruits of the litigation. On the other hand, the defendant's right of appeal is not to be undermined by payment to a plaintiff who cannot repay if the defendant's position is vindicated on appeal. 26I think it appropriate to grant a stay of the judgment I propose to enter against the first defendant. However, on the condition, which Mr Parker of senior counsel accepts as proper, that a notice of appeal in final form be filed within 28 days of today's date. 27I will ask the parties to bring in short minutes of final order reflecting these brief reasons I have given and also the other matters agreed amongst themselves. 28I note that Mr Perry has not sought a stay of the judgment in favour of the plaintiff against his client and Mr Parker has not sought a stay of the judgment I ordered in favour of Mr Perry's client on its cross-claim.