Supreme Court New South Wales Medium Neutral Citation: Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd (No 2) [2015] NSWSC 734 Hearing dates: 10 June 2015 Date of orders: 12 June 2015 Decision date: 12 June 2015 Jurisdiction: Common Law Before: Schmidt J Decision: Issue resolved in favour of Dr Helm and the following orders made: 1. Judgment for the plaintiff against the defendant in the amount of $959,478. 2. Note that of the judgment sum in order 1 the defendant has already paid the sum of $12,104.20 by way of repayment of workers compensation benefits paid to the plaintiff, in partial satisfaction of the judgment. 3. Payment of $197,216 of the judgment is stayed pending the resolution of any appeal filed by the defendant. 4. The balance of the judgment sum namely $762,262 be paid on or before 25 June 2015. Directions 5. The defendant to file and serve written submissions on the question of costs within 2 days of judgment being delivered. 6. The plaintiff to file and serve any submissions in reply within 4 days of judgment being delivered. 7. The Court is to determine the question of costs on the papers. Catchwords: PROCEDURE – judgment and orders – effect of judgments – whether judgment contains error as to the calculation of future economic loss – no error Legislation Cited: Civil Liability Act 2002 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566 Category: Consequential orders (other than Costs) Parties: Karen Casey David Helm Pel-Air Aviation Pty Ltd Representation: Counsel: Mr RS McIlwaine SC with Mr G Graham (Plaintiffs) Mr D Lloyd (Defendant) Solicitors: Everett Evans (Plaintiffs) GSG Legal (Defendant) File Number(s): 2010/385262 2011/46508 Publication restriction: None Judgment 1. I gave judgment in these matters on 15 May 2015, finding in each case for the plaintiff (see Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566). 2. On 10 June 2015, the parties reported that agreement as to orders reflecting the judgment had largely been reached in both cases. 3. That day the parties advanced various documents, which were marked: mfi 14 - Defendant's proposed short minutes in relation to Dr Helm mfi 15 - Defendant's submissions in support of Order 1 of the Defendant's proposed short minutes of order in relation to Dr Helm mfi 16 - Defendant's proposed short minutes of orders in relation to Ms Casey 1. There was an error in the mfi and exhibit list which came to light after the directions hearing, which resulted in those documents being incorrectly marked. Those mfis have accordingly be remarked mfi 16, 17 and 18 respectively. The parties will be provided with a revised list to reflect those changes. Ms Casey 1. In Ms Casey's case, I made orders on 10 June which quantified the sum Pel-Air was to pay her, which had been agreed subject to quantification of that part of the order which reflects damages for funds management, which depends on other proceedings presently on foot before the Court. A stay of part of the judgment sum was also agreed and I made orders reflecting that agreement, together with an order requiring Pel-Air to pay Ms Casey the balance of the judgment sum by 24 June 2015. 2. Pel-Air did not consent to that latter order, which was sought by Ms Casey, but I considered it a just basis on which the stay agreed should be granted, having in mind not only what finally had to be resolved in her case at the hearing in February 2015, but also the time that has elapsed since the May judgment was given and the consequence of the judgment, once entered, for payments Ms Casey is currently receiving for her considerable ongoing medical needs, from the Workers Compensation insurer. 3. The question of costs must also be determined. That must await finalisation of the funds management question. Ms Casey's case is thus adjourned to 1 July 2015 at 9.30 am for further directions. The parties have liberty to approach if that date proves to be inconvenient. Dr Helm 1. In Dr Helm's case agreement as to the orders to be made was also largely reached. There is, however, an issue between the parties as to whether the May judgment contains an error as to the calculation of Dr Helm's future economic loss, which can be corrected in accordance with the powers granted by Rule 36.16 or 36.17 of the Uniform Civil Procedure Rules 2005. 2. Pel-Air contended that I had misunderstood the parties' submissions, with the result that an error was made, which ought to be corrected by substituting the figure $3,354 appearing at [366] of the judgment, with the figure $2,614. 3. Dr Helm contended that there was no error and that I had correctly understood and accepted the case advanced on his behalf, as to the proper construction of s 12 of the Civil Liability Act 2002 (NSW) and its application to his circumstances. It was only if some clerical error was identified that the judgment could be corrected. There had not been any such error and accordingly, Pel-Air would have to pursue its case on this issue, on appeal. 4. It is the resulting difference, of $197,216, which is the subject of the agreed stay. The conclusion which I reach about this issue has an impact on the cases which the parties wish to advance in relation to costs. 5. The parties' various written submissions on quantum in Dr Helm's case were marked mfi 6 (Dr Helm's submissions); mfi 10 (Pel-Air's submissions); mfi 11 (Pel-Air's submissions); mfi 12 (Pel-Air's schedule future economic loss); mfi 13 (Dr Helm's schedule commercial assistance and certain future treatment expenses); mfi 14 (Dr Helm's schedule other future treatment expenses). Further submissions were sent by email for Dr Helm on 9 February; by Pel-Air, in response to mfi 13 and 14 on 23 February, with a further response for Dr Helm sent on 12 March. 6. In Pel-Air's 23 February submissions, the dispute was clearly identified to be between the figure $3,354 and $2,314, Pel-Air arguing that the $3,354 figure had not been adjusted for tax. Extracts from ABS statistics and Table 11A Average weekly earnings were attached, but what they purported to establish was not there explained. This was a response to the 9 February submission for Dr Helm that: "1. The purpose of S 12 (2) is to provide the mechanism by which the cap on the level of weekly earnings which can be used by the Court to calculate economic loss is determined. 2. The cap is 3 times the average weekly earnings at the date of the award, in this case fixed at $3354 per week. This sum is agreed between the parties. 3. The sub section directs the court to disregard the amount, if any, by which the Plaintiff's gross weekly earnings exceed the cap. 4. In this case the Plaintiff's gross and after tax weekly earnings exceed the cap. 5. The after tax weekly earnings are $A3,580 per week. But for S 12 (2) this sum would be used to calculate future economic loss. 6. However because of S 12 (2) the Court must disregard the amount above the cap and calculate future economic loss on the basis of the cap, $A3,354, as has been done in the Plaintiff's submissions set out in MFI 13. 7. For the foregoing reasons it is submitted that the method postulated by the Defendant in its revised submissions on future economic loss should not be followed." 1. In the May judgment I said: "362 It was agreed that the figure representing three times the relevant average weekly earnings was $3,354." 1. There is no issue about this. I then observed: "363 Originally Dr Helm's damages were calculated by reference to his estimated gross weekly salary of $3,580 (see paragraph 8 of mfi 6). Accepting the figures at paragraph 8 of mfi 6, Pel-Air calculated that his net salary, after deduction of British tax, was $3,614 and submitted that, accordingly, s 12 required that his loss from age 60 be calculated by reference to $3,354 (paragraph 1 of mfi 10)." 1. It had been submitted for Pel-Air at paragraph 1 of mfi 10 that the figure of $3,614 had to be: "… reduced to 3 x the average weekly earnings for all employees in New South Wales: Civil Liability Act s.12(2) and s.12(3). That figure as at May 2014 which appears to be the latest date that the figures were available was $1,118. That produces a weekly figure of $3,354." 1. I then observed in the May judgment: "364 Dr Helm then conceded that in accordance with s 12, these damages had to be calculated by reference to the figure of $3,354 per week (see mfi 13 and 14)." 1. At mfi 13, that figure was adopted in Dr Helm's calculation, "because of the cap provided by s 12CLA". 2. I then observed in the May judgment as to Pel-Air's 23 February submissions in relation to mfi 13 and 14: "365 Pel-Air then submitted in response to mfi 13 and 14, that these damages should be calculated by reference to a net figure of $2,314, said to have been calculated in accordance with paragraph 1 of mfi 10. No reference was made to such a figure in mfi 10. How that figure was calculated is not revealed by what was submitted there. Reference was also made in Pel-Air's response to ABS statistics and an average weekly earnings table attached to the submission. How those documents relate to the calculation of the figure of $2,314, is not apparent." 1. In its written submissions on the alleged error (mfi 15), it was submitted by Pel-Air that the submissions advanced at paragraph 1 in mfi 11 had been overlooked, where it was said: "… Accepting the calculations in paragraph 8 of the Plaintiffs submissions, his earnings for that period could be expected to have been £150,000 gross per year. However, CLA s.12 provides that any amount by which the Plaintiffs gross weekly earnings would have exceeded 3 x the amount of average weekly earnings is not recoverable. 3 x the amount of average weekly earnings at the relevant date is $3,354. That figure operates as the cap on an award to the Plaintiff. That amount annualised and converted to English pounds is £88,948. On United Kingdom tax scales that would be taxed at 20% on the first £31,865 (tax of £6,373) and 40% on the next £57,055 (£22,822). That is, total tax of £27,195 resulting in £61,725 net per annum. That may be expressed in weekly terms as £1,187 per annum. At the current exchange rate (£1 = $1.95) that is, $2,314 per week." 1. It was also argued in mfi 15 that I had proceeded on the misapprehension that the $3,354 figure was the net figure, I having concluded at [366] of the May judgment that: "366 I consider that the submissions advanced for Dr Helm as to the proper construction of s 12 of the Civil Liability Act are correct. In calculating these damages s 12 requires any amount by which Dr Helm's gross weekly earnings would, but for his injuries, have exceeded $3,354, be ignored. That is a figure less than Dr Helm's net salary would be, after tax, but for his injury. Accordingly, $3,354 is the figure by reference to which these damages must be calculated." 1. The view that $3,354 was a figure less than Dr Helm's net salary would be, after tax, but for his injury, rested on an acceptance of the submission advanced for Dr Helm on 9 February, that his after tax weekly earnings in the UK would at the relevant time have been $A3,580. It was common ground that this aspect of Dr Helm's damages had to be assessed by reference to net figures. But for the effect of s 12, Dr Helm's damages would have been calculated on that net figure. 2. Section 12(2) however requires the Court "to disregard the amount (if any) by which the claimant's gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award". This required that any amount in excess of $3,354 had to be ignored. Accordingly, I concluded that the difference between that figure and the net figure $A3,580 had to be ignored when damages were calculated. I did not, however, accept that s 12(2) required the sum of $A3,580 to be further reduced, by application of notional tax, as had been argued in mfi 11. 3. True it is that I did not specify in paragraphs [365] and [366] of the May judgment that it was mfi 11, where Pel-Air had advanced the argument that there had to be a further deduction for tax, from the $3,354 figure, as there calculated, to arrive at the $2,314 figure. That argument was however dealt with and rejected in the May judgment. As I there explained, Pel-Air's approach to the construction and application of s 12 in Dr Helm's case could not be accepted. The section did not require the agreed sum of $3,354 to be reduced, by deduction of an amount reflecting notional tax, as calculated by Pel-Air. Rather, it did not permit damages to be assessed at a figure exceeding $3,354, which was calculated on a gross basis. If that figure needed to be calculated on a net basis, as Pel-Air submitted was necessary, s 12(2) would have said so. 4. Accordingly, this issue must be resolved in favour of Dr Helm and the following orders made: 1. Judgment for the plaintiff against the defendant in the amount of $959,478. 2. Note that of the judgment sum in order 1 the defendant has already paid the sum of $12,104.20 by way of repayment of workers compensation benefits paid to the plaintiff, in partial satisfaction of the judgment. 3. Payment of $197,216 of the judgment is stayed pending the resolution of any appeal filed by the defendant. 4. The balance of the judgment sum namely $762,262 be paid on or before 25 June 2015. Directions 5. The defendant to file and serve written submissions on the question of costs within 2 days of judgment being delivered. 6. The plaintiff to file and serve any submissions in reply within 4 days of judgment being delivered. 7. The Court is to determine the question of costs on the papers. 1. These orders also impose an obligation on Pel-Air to pay that part of what has been ordered which is not subject to the agreed stay, within 14 days. This, I consider is also a just basis on which the agreed stay should be granted in Dr Helm's case, given what had finally to be resolved in his case at the hearing in February, the time that has elapsed since the May judgment was given and Dr Helm's impending return to the UK. 2. In his case, the parties propose to file written submissions on costs, which are accordingly also reserved. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2015