Fuller v Avichem Pty Ltd trading as Adkins Building & Hardware Supplies

District Court of NSW|2019-04-05

Judgment

On 4 March 2019 I published my reasons for awarding a verdict in favour of the plaintiff.
The parties agree that the total of the heads of damage referred to in that judgment amount to $421,652.00.
The plaintiff seeks an order for interest pursuant to section 151M Workers Compensation Act 1987 (WCA) and an order for costs which is governed by section 151T Workers Compensation Act 1987, section 346 Workplace Injury Management and Workers Compensation Act 1998 (WIM Act) and clauses 94 to 99 of the Workers Compensation Regulation 2016 (the Regulation).
The parties have agreed that: 1. the mathematical calculation for interest is $55,389.00, if the Court determines that the plaintiff is entitled to interest. 2. on 5 November 2018 the defendant made a verbal offer of settlement to the plaintiff in the sum of $500,000.00 inclusive of costs and clear of workers compensation payments to that date, which offer was not accepted by the plaintiff (the Verbal Offer); 3. the amount of workers compensation payments as at 5 November 2018 was $306,351.00; 4. the parties participated in a compulsory mediation pursuant to section 318A of the WIM Act on 7 September 2017. The final offers for each party recorded by the mediator were: 1. for the plaintiff - $470,000.00 plus costs clear of workers compensation payments made to date; 2. for the defendant - $350,000.00 plus costs clear of workers compensation payments made to date.

The Plaintiff's Claim for Costs

The award of interest is a head of damage that forms part of the judgment to which the plaintiff is entitled, which amounts to $477,041.00.
In those circumstances, the plaintiff has received a judgment no less favourable to him than the terms of his final offer of settlement at mediation and is entitled to an order that the defendant pay his costs in accordance with clause 94 of the Regulation.
For the sake of completeness, the plaintiff's entitlement to that judgment sum (on the defendant's argument) also exceeds the Verbal Offer made by the defendant on 5 November 2018.

Orders

The orders I make are: 1. The plaintiff is entitled to an award of interest pursuant to section 151M Workers Compensation Act 1987 in the sum of $55,389.00; 2. There will be judgment entered for the plaintiff in the sum of $477,041.00; 3. The defendant is to pay the plaintiff's costs pursuant to Regulation 94 Workers Compensation Regulation 2016 on a party/party basis noting that such costs are governed by Schedule 7 of the Workers Compensation Regulation 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: 15 April 2019

At a glance

Court

Decision date

Source

Judgment (5 paragraphs)

Parties

Cases Cited (4)

Cited By (2)