Fuller v Avichem Pty Ltd t/as Adkins Building & Hardware [2019] NSWCA 305

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fuller v Avichem Pty Ltd t/as Adkins Building & Hardware [2019] NSWCA 305 Hearing dates: 17 September 2019 Date of orders: 13 December 2019 Decision date: 13 December 2019 Before: Macfarlan JA at [1]; Payne JA at [76]; White JA at [107] Decision: (1) Allow the appeal. (2) Set aside the monetary judgment entered in the District Court. (3) Direct that the parties attempt to agree within 14 days of this judgment as to the form of the remaining orders that the Court should make and, if they are able to agree, that they submit draft Short Minutes of Order to the Court within seven days thereafter. (4) Direct that, failing agreement in accordance with Order (3): (a) the appellant within 21 days of this judgment file and serve short written submissions as to the remaining orders that should be made; (b) the respondent file and serve its response within seven days thereafter; and (c) the appellant file and serve any reply within a further seven days. Catchwords: NEGLIGENCE – damages – residual earning capacity – plaintiff injured in course of employment – plaintiff completely incapacitated for work from date of injury until conclusion of hearing – whether plaintiff has residual earning capacity of eight hours per week – vicissitudes - whether case warranted greater than usual discount for vicissitudes of 15 per cent

EVIDENCE – opinion evidence – expert opinion of clinical psychologist concerning residual earning capacity of plaintiff – whether clinical psychologist was sufficiently qualified to give expert evidence Legislation Cited: Evidence Act 1995 (NSW), s 79 Long Service Leave Act 1955 (NSW) Workers Compensation Act 1987 (NSW), s 151G Cases Cited: Chung v Anderson [2004] NSWCA 321 Dal v Chol [2018] NSWCA 219 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 FAI Allianz Insurance Ltd v Lang [2004] NSWCA 413 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 Mead v Kerney [2012] NSWCA 215 Moran v McMahon (1985) 3 NSWLR 700 Nominal Defendant v Livaja [2011] NSWCA 121 State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53 Texts Cited: H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) Category: Principal judgment Parties: David Fuller (Appellant) Avichem Pty Ltd t/as Adkins Building & Hardware (Respondent) Representation: Counsel: G J Parker SC / J de Greenlaw (Appellant) J Turnbull SC / J Sleight (Respondent)