JUDGMENT
1 Several matters, some requiring decision arising out of the reasons for judgment delivered on 24 May, were debated before me today.
2 The first concerns the costs of the action by Kaybron. Kaybron, the employer of Omar Baghdadi, sued under section 151Z(i)(e) of the Workers Compensation Act for recovery of compensation paid by it. In its further amended statement of claim, filed in court on 26 October 2007, Kaybron sought $5,678,991.63 plus interest of $1,295,158. In the result, according to my findings, it was held entitled to recover $4,834,461, plus interest of $687,421.
3 The defendants submitted that it should not be entitled to its costs and indeed, that it should pay the defendants' costs. The basis of this contention, as I understand it, is that it was always conceded that Kaybron was entitled to recover the bulk of the payments made by it, either from the defendants or from Omar Baghdadi.
4 It is true that Kaybron, being put to proof, did not establish its entitlement to the whole of the sum claimed and there was a significant deduction. However, it did succeed in establishing liability on the part of the defendants, which was always hotly contested, and, in so doing, had the benefit of recovery of interest on the payments made, albeit at a lower rate than the rate contended for.
5 Kaybron was not joined as a party in the original proceedings, although two of the three defendants brought cross-claims against it. It may be that it could have brought cross-claims but I see no reason for it to be penalised by bringing a separate action that cannot, in any significant way, have increased the costs of the proceedings. The particular expenses identified by Mr W S Wade in his affidavit sworn today were applicable to Kaybron's claim, however constituted.
6 Despite Mr Parker's submission to the contrary, I regard the question whether an order for costs should be made in Kaybron's favour as open for consideration. However, in the circumstances, I do not think there is any justification for some other order within the meaning of Rule 42.1. In my view, costs should follow the event and the defendants should be ordered to pay Kaybron's costs.
7 At paragraph 5.9.3 of my reasons, I assess the notional damages to which Omar Baghdadi would have been entitled against Kaybron for the purposes of section 151Z(ii)(d) of the Workers Compensation Act. In that assessment I included interest on past wage loss of $16,149. It was submitted by Mr Parker that such interest should not have been allowed, by virtue of section 151M of the Workers Compensation Act, there being no evidence that the conditions set out in that section had been met.
8 It was submitted on behalf of the defendants that, as Kaybron was not sued by Omar Baghdadi, section 151M does not apply. It seems to me that in making the notional assessment under section 151Z(ii)(d), Kaybron should not be regarded as being in a different position than it would have been if sued. Accordingly, for interest to be included in the assessment there must, in my opinion, be evidence which would trigger the operation of the right to award interest under section 151M.
9 Arguably, this matter does not fall within the slip rule 36.17, but the amount involved is small, it was not subject to any submissions prior to publication of my reasons on 24 May and, in the circumstances, I hold that it was an accidental slip within rule 36.17, with the consequence that $16,149 is excluded from my assessment of the notional damages to which Omar Baghdadi would have been entitled against Kaybron.
10 It has been agreed that Omar Baghdadi is entitled to $1.23 million for management of his verdict. In my view, a proportion suggested at 10 per cent should be allowed of that sum, in the notional assessment of damages to Kaybron. The question is whether it falls within the expression "damages for past economic loss due to loss of earnings" and "damages for future economic loss due to the deprivation or impairment of earning capacity" as those expressions appear in section 151G. The phrase "due to" is wide. It is perhaps a matter of expression but, given that the legislature must have contemplated the situation of a very seriously injured plaintiff, I think the expression is wide enough to encompass funds management where the negligence of the employer creates the need for the management, as occurred in this case.