Supreme Court New South Wales Medium Neutral Citation: Vo v Tran (No 2) [2016] NSWSC 1198 Hearing dates: 18 August 2016 Date of orders: 30 August 2016 Decision date: 30 August 2016 Jurisdiction: Common Law Before: Hall J Decision: (1) I enter verdict and judgment in favour of the plaintiff in the amount of $512,764.94. (2) I order that the defendants pay the plaintiff's costs of the proceedings on the ordinary basis, including the hearing on 18 August 2016. Catchwords: DAMAGES – calculation of future superannuation loss by way of a buffer as a component in the award by way of a buffer for future economic loss – no specific head of claim particularised in relation to claim for physiotherapy and accordingly no allowance made in that regard Legislation Cited: Civil Liability Act 2002 Cases Cited: Dean v Phung [2011] NSWSC 653 Category: Procedural and other rulings Parties: Thi Ngoc Hien Vo (Plaintiff) Hung Vien Tran (First Defendant) Thuy My Le (Second Defendant) Representation: Counsel: DE Baran (Plaintiff) N Polin SC (Defendants) Solicitors: Shine Lawyers (Plaintiff) Curwoods Lawyers (Defendants) File Number(s): 2014/242686 Judgment 1. On 29 July 2016, I delivered reasons for judgment. 2. I stated at [259] that, subject to further submissions on damages, judgment would be entered in favour of the plaintiff against the defendants. 3. The parties, in accordance with [260] of the judgment were to confer in relation to specified heads of damages. 4. On behalf of the plaintiff, Mr Baran of counsel provided written submissions dated 15 August 2016 which set out a Table of Damages sought. 5. Mr Polin SC provided the Defendants' Submissions as to Final Orders dated 16 August 2016, as well as Defendants' Submissions as to the Court Granting a Stay. 6. Mr Baran relied upon the Plaintiff's Outline of Submissions in Response to the Defendants' Submissions, dated 16 August 2016. 7. The proceedings were listed before me on 18 August 2016 on which occasion I heard further submissions from counsel for the parties. 8. Agreement was reached as to the amounts repayable to Medibank Private ($4,426.50) and damages pursuant to Fox v Wood ($4,811). 9. That left two matters outstanding, namely, future lost superannuation contributions claimed at 14.75%, $17,500 and a claim for future physiotherapy in the amount of $2,775. 10. In relation to future economic loss I assessed the plaintiff's loss on the basis of s 13 of the Civil Liability Act 2002 and took into account the matters set out in [227](1)-(8). 11. In the Defendants' Submissions as to Final Orders on the issue of future superannuation, the defendants stated that they did not agree to any further allowance for superannuation and that the Court had allowed a buffer for future economic loss of $125,000. It was stated, "This figure no doubt was inclusive of superannuation": at [6]. 12. A further submission was made on behalf of the defendants that in any event, if applicable, the rate for future superannuation should be averaged and a rate of 11% applied. It was noted that the current range for future superannuation is between 9.5% and 12% as a result of the future superannuation changes not having been passed by Parliament. A table produced by Furzer Crestani, Chartered Accountants, was attached to the submissions setting out the rate of 9.5% for the period 1 July 2016 to 12% (1 July 2025). 13. In oral submissions, Mr Polin raised a further issue beyond those in his written submissions. That related to the fact that the plaintiff had been on a bridging visa and there was an issue as to what loss would be claimable when her bridging visa comes to an end "… unless she is successful in getting permanent residency": T 3:45-50. He submitted that there was no evidence to suggest that she had a good case in terms of permanent residency. 14. In the course of submissions it was noted that the plaintiff had since married. Mr Baran stated that his instructions were that her husband is an Australian citizen: T 6. 15. I drew the parties' attention to a decision in which a buffer was allowed for impairment of future earning capacity which was stated to have included an allowance for future lost superannuation. I refer to the decision in Dean v Phung [2011] NSWSC 653 at [59] per Hislop J. 16. As earlier stated in my judgment of 29 July 2016, I set out the particular factors taken into account in calculating future economic loss by way of a 'buffer'. There is no mention there that I took into account future superannuation loss and I confirm that it is a matter to which I did not give attention. Accordingly, the position arises as to whether in the circumstances to which I referred above, some allowance should be made for future loss of superannuation contributions. 17. I have considered the suggested approach by Mr Baran which produced a figure of $17,500. I do not consider that it would be appropriate to make a straight calculation by applying that, or any other percentage, to the amount allowed by way of a buffer. The decision to which I have referred above, Dean v Phung, indicates that in awarding a buffer, any allowance for future economic loss is but a component of the award made for impairment of future earning capacity. It is not, in such a case, a straight calculation as in a case where future economic loss is assessed on a weekly loss. Accordingly, I consider that only a modest amount should be allowed for future lost superannuation contributions, namely, approximately one third of the amount claimed. I consider that there should be added to the buffer amount of $125,000 an amount of $5,000 for future loss of superannuation contributions, thereby making a total amount for future economic loss of $130,000. 18. In relation to the claim for future physiotherapy, there is only scant evidence in relation to this claim. There was no specific head of claim particularised, and in those circumstances a real question arises as to whether it would be fair to the defendants to award the amount of $2,775 for that item. This is not a case in which the plaintiff conducted its case in a particular way which would make it appropriate to make allowance for physiotherapy treatment in the future. In the circumstances I do not consider that the evidence would enable the amount claimed or any quantifiable amount for physiotherapy to be allowed. Accordingly, the amount claim of $2,775 for future physiotherapy is not allowed. 19. Damages are to be awarded on the following basis. Past Loss of Earnings $33,127.95 Past Medical/Hospital and Other Expenses 132,949.49 Past Amounts Repayable to Medibank Private 4,426.50 Future Economic Loss 125,000.00 Future Lost Superannuation Contributions 5,000.00 Non-Economic Loss 178,000.00 Future Treatment, Other Expenses & General Practitioners 1,423.00 Psychiatric Consultations 2,671.00 Future Medication 1,016.00 Future Prosthesis Replacement 23,340.00 Future Equipment 1,000.00 Future Physiotherapy 0 Damages pursuant to Fox v Wood 4,811.00 Total: $512,764.94 Costs 1. On the question of costs, the plaintiff being the successful party, costs should follow the event. Orders 1. I enter verdict and judgment in favour of the plaintiff in the amount of $512,764.94. 2. I order that the defendants pay the plaintiff's costs of the proceedings on the ordinary basis, including the hearing on 18 August 2016. 1. As stated in the reasons for judgment delivered on 29 July 2016, the plaintiff provided an undertaking to the Court that, in the event of judgment in her favour leading to an award of damages, she would deduct and pay to the defendant's workers compensation insurer the amount of $183,811.36 being the amount set out in para [4] of the written submissions for the plaintiff dated 15 August 2016. ********** 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 August 2016