Parkview Constructions Pty Ltd v Abrahim

Court of Appeal (NSW)|2014-04-09|Before: McColl JA, Gleeson JA, Adams J

Background 6 Mr Abrahim was injured while working as a painter on a building site at Greenwich, on which a large residential complex was being constructed. The accident occurred at about 8:15am on Monday, 2 April 2007. 7 Mr Abrahim fell when a metal plank on a three-board "hop-up" platform, attached to a scaffolding framework, gave way as he stepped on to it. Unfortunately, the result was that Mr Abrahim fell in excess of ten metres and sustained serious injuries. 8 Mr Abrahim sued Parkview, the head contractor on the construction site; Erect Safe, the scaffolding subcontractor engaged by Parkview, which was responsible for erecting the scaffolding; and Blue Star, Mr Abrahim's employer. The primary Judge found that each of Parkview and Erect Safe had been negligent but, as I have noted, his Honour dismissed Mr Abrahim's claim against Blue Star. The primary Judge also found that Mr Abrahim had not been contributorily negligent and there is no challenge to that finding. 9 In this Court, Erect Safe challenges the finding of negligence made against it and seeks an order that judgment be entered in its favour against Mr Abrahim. Alternatively, Erect Safe seeks to reduce its share of responsibility for Mr Abrahim's injuries both by increasing Parkview's share of responsibility and by challenging the finding that Blue Star was not negligent. Erect Safe also contends that the allowance for economic loss in the damages award was excessive and should be reduced. 10 Parkview's notice of appeal mirrors that of Erect Safe. Parkview challenges the finding of negligence made against it or, alternatively, seeks to reduce its share of responsibility. It, too, challenges the allowance for economic loss in the damages award. 11 Blue Star has filed a notice of cross-appeal challenging the allowance for economic loss in the assessment of Mr Abrahim's damages. Blue Star has done so to cover the possibility that the appeals will succeed in overturning the primary Judge's finding that Blue Star was not negligent and accordingly, that it will be liable to contribute to Mr Abrahim's damages. 12 Although Mr Abrahim was not found to have been contributorily negligent, he has also filed a notice of cross-appeal, contending that his Honour erred in failing to find that Blue Star had been negligent. Mr Abrahim's cross-appeal was no doubt filed out of an abundance of caution, since a finding that Blue Star (Mr Abrahim's employer) was partially responsible for Mr Abrahim's injuries would produce a reduction in his overall damages: see Workers Compensation Act 1987, s 151Z. ...

Conclusions 130 The appeals by Parkview and Erect Safe against the findings of negligence and causation fail. However, their appeals succeed to the extent that a finding of negligence should be made against Blue Star and the damages awarded to Mr Abrahim should be reduced. Their appeals also succeed insofar as Blue Star is to be held liable to contribute one-sixth of Mr Abrahim's damages. 131 As between Parkview and Erect Safe, the latter's appeal succeeds in reducing its liability to contribute to the award of damages to Mr Abrahim. However, Parkview's contribution to the damages award has been increased from 40 per cent to 50 per cent, notwithstanding the contribution now to be made by Blue Star. 4The Principal Judgment pointed out (at [132]) that since Blue Star had been found to be negligent and liable to contribute to Mr Abrahim's damages, it would be necessary to recalculate the damages for his economic loss having regard to the provisions of the Workers Compensation Act 1987 (NSW) ("WC Act"). It was also pointed out that it would be necessary for the judgment against each of Parkview and Erect Safe to be amended accordingly and for judgment to be entered against Blue Star for damages calculated in conformity with the Principal Judgment. 5The orders made by the Court were as follows: 1 The appeal by Parkview Constructions Pty Ltd ("Parkview") in CA 2012/400220 be allowed in part. 2 The appeal by Erect Safe Scaffolding (Australia) Pty Ltd ("Erect Safe") in CA 2012/386915 be allowed in part. 3 The cross-appeal by Mr Abrahim in CA 2012/400220 be allowed. 4 The cross-appeal by Blue Star Painting Solutions Pty Ltd be allowed in part. 5 Set aside Orders 1, 3, 4, 5, 6, 7 and 8 made by Adams J on 23 November 2012. 6 Set aside the order made by Adams J on 19 February 2013. 7 Direct the parties to file agreed short minutes of order on or before 31 January 2014 (a) specifying the amount of the verdict and judgment to be entered in favour of Mr Abrahim against each of Parkview, Erect Safe and Blue Star; (b) specifying the orders that should be made in lieu of the orders set aside by Order 5 above; (c) specifying the costs orders that should be made. 8 If the parties cannot agree on the matters identified in Order 7(a) and (b): (a) Parkview, Erect Safe and Blue Star are to file and serve their proposed short minutes of orders and brief written submissions in support on or before 31 January 2014; (b) Mr Abrahim is to file and serve his proposed short minutes of order and brief submissions in support on or before 14 February 2014. 6The Principal Judgment noted (at [134]) that the parties had not had the opportunity to make submissions as to costs. Nevertheless, the Principal Judgment expressed preliminary views, subject to any submissions made by the parties, as to the appropriate costs orders. 7The parties subsequently filed written submissions. Except for the question of costs, the orders are now largely agreed, although some clarification of the written submissions and reconsideration of the form of orders were required from the parties. 8Blue Star's written submissions recalculate Mr Abrahim's damages in conformity with the findings made in the Principal Judgment. Blue Star's calculations (incorporating the modifications to the primary Judge's assessment set out in the Principal Judgment), are as follows: Non-economic loss $347,750.00 Past out of pocket expenses $196,732.16 Future out of pocket expenses $336,097.39 Past economic loss (reduced by 30% (Principal Judgment, at [129])) $173,740.00 Interest on past-economic loss (reduced by 30%) $15,073.28 Past loss of superannuation (reduced by 30% (Principal Judgment, at [129])) $19,111.00 Future economic loss (original judgment was $628,830) $739,800 less 15% - now $739,800 less 30% (Principal Judgment, at [128]) $517,860.00 Future loss of superannuation (11% of the reduced sum of future economic loss of $517,860.00) $56,964.60 Past and future attendant care $386,110.57 Equipment needs $20,597.88 Fox v Wood (1981) 148 CLR 438 $20,506.21 Revised total $2,090,542.80 9Blue Star points out that the compensation regime under the WC Act permits an award of damages against an employer only for past and future economic loss, past and future loss of superannuation and the so-called Fox v Wood [1981] HCA 41; 148 CLR 438 component (compensating a plaintiff who has paid income tax on workers compensation payments received and who is obliged by the WC Act to repay all such payments to his or her employer, without adjustment for the income tax previously paid). Blue Star calculates the damages that would be awarded to Mr Abrahim in accordance with the WC Act as $803,255.09. One sixth of that amount (the proportion of damages for which Blue Star is responsible) is $133,875.84. 10Blue Star calculates the damages payable to Mr Abrahim by Parkview and Erect Safe to be $1,742,119.00 (being five-sixths of $2,090,542.80). Since Parkview is to bear 50 per cent and Erect Safe 33 per cent of the total damages, the five-sixths portion of the total damages payable to Mr Abrahim is to be borne between themselves in the proportion of 60 (Parkview) to 40 (Erect Safe). Thus Parkview is liable to pay Mr Abrahim $1,045,271.40 (60 per cent of $1,742,119.00), while Erect Safe is liable to pay $696,847.60 (40 per cent of $1,742,119.00). 11Blue Star contends that it is entitled to recover from Mr Abrahim all workers compensation payments he has received. These payments apparently amounted to $485,732.69 as at 31 January 2014. However, it is common ground that workers compensation payments will continue to be made to Mr Abrahim until final judgment is entered and the damages awarded to him are paid. 12Blue Star's cross-claims sought indemnity from Parkview and Erect Safe in relation to workers compensation payments made to or on behalf of Mr Abrahim, together with interest on those payments. Blue Star contends that it is entitled to interest on the amount it has paid by way of workers compensation. It calculates that Parkview is liable to pay interest of $60,873.75 and Erect Safe is liable to pay $40,582.51. There is no dispute as to the correctness of these figures. 13Leaving to one side the question of costs, Blue Star proposes the following orders in this Court: 1 The appeal by Parkview Constructions Pty Limited ("Parkview") in CA 2012/400220 be allowed in part. 2 The appeal by Erect Safe Scaffolding (Australia) Pty Ltd ("Erect Safe") in CA 2012/386915 be allowed in part. 3 The cross-appeal by Mr Abrahim in CA 2012/400220 be allowed. 4 The cross-appeal by Blue Star Painting Solutions Pty Limited ("Blue Star") be allowed. 5 Set aside orders 1, 3, 4, 5, 6, 7 and 8 made by Adams J on 23 November 2012. 6 Set aside the order made by Adams J on 19 February 2013. 7 Judgment in proceedings 2010/18002 be entered in accordance with the short minutes of order that have been drafted separately in respect of those proceedings. 14The only change that these orders would require to Orders 1-6 made on 20 December 2013 is to omit the words "in part" from Order 4. No party objects to this amendment and it should be made. Otherwise Orders 1-6 made on 20 December 2013 (set out above at [5]) should be confirmed. 15Blue Star's proposed Order 7 contemplates that orders will be made in substitution for those made by the primary Judge. The orders that Blue Star says should be substituted, omitting those related to costs, are as follows (incorporating some editorial changes): 1 Judgment in favour of the plaintiff ("Mr Abrahim") against the first, second and third defendants with liability amongst the defendants to be apportioned as follows: (a) the first defendant, Parkview Constructions Pty Limited ("Parkview") - one half; (b) the second defendant, Erect Safe Scaffolding (Australia) Pty Limited ("Erect Safe") - one third; (c) the third defendant, Blue Star Painting Solutions Pty Limited ("Blue Star") - one sixth; 2 Judgment against Parkview in the sum of $1,045,271.50. 3 Judgment against Erect Safe in the sum of $696,847.60. 4 Judgment against Blue Star in the sum of $133,875.84. ... 7 Pursuant to s 151Z(1)(b) of the Workers Compensation Act 1987 (NSW), Mr Abrahim is liable from the judgment to repay Blue Star compensation benefits that have been paid by or on behalf of Blue Star to or on behalf of Mr Abrahim in an amount as at 31 January 2014 at $485,732.69, such liability to increase to the amount finally paid by or on behalf of Blue Star by the time Blue Star's liability to make payments to or on behalf of Mr Abrahim ceases. 8 Judgment in part for the cross-claimant on the first cross-claim (Blue Star) against the first and second cross-defendants (Parkview and Erect Safe) on the first cross-claim. 9 Judgment in part for the cross-claimant on the second cross-claim (Erect Safe) against the first and second cross-defendants (Parkview and Blue Star) on the second cross-claim. 10 Judgment in part in favour of the cross-claimant on the third cross-claim (Parkview) against the first and second cross-defendants (Erect Safe and Blue Star) on the third cross-claim. 11 The judgment on all those cross-claims referred to in Orders 8, 9, 10 above to be effected by the following: 1 payment of $60,873.75 by Parkview to Blue Star; 2. payment of $40,582.51 by Erect Safe to Blue Star. 16The attitude of the other parties to the orders proposed by Blue Star was not always made clear by their written submissions. This was particularly the case with Mr Abrahim's submissions, which failed to comply with the Court's directions in a number of respects. The parties were therefore asked to give further consideration to the form of orders that should be made. As a consequence, the orders (other than on costs) are now almost entirely agreed. 17Blue Star accepts that proposed substituted Order 7 (of the orders to be substituted for those made by the primary Judge) is unnecessary and should not be made. Therefore the final orders should exclude proposed Order 7. 18The parties agree that the Fox v Wood component of Mr Abrahim's damages should be covered by the following order: The defendants pay, in addition to the judgment sums referred to, an amount to the plaintiff pursuant to the principles in Fox v Wood regarding tax paid on workers compensation benefits, such sum to be calculated on the amount of taxation on weekly compensation benefits paid up to date of final judgment in addition to the amount that was calculated in the assessment of damages as at November 2012, such an amount to be agreed and in default of agreement liberty to approach the Court. 19Blue Star, Parkview and Erect Safe agree that Blue Star is entitled to interest from Parkview and Erect Safe in respect of workers compensation payments made by Blue Star. The calculations recorded in Blue Star's proposed substituted Order 11 are agreed. 20In addition, these three parties agree that an order to the following effect should be made: Parkview and Erect Safe pay interest to Blue Star on workers compensation payments made by Blue Star between 4 February 2014 and the date of final judgment entered by the Court of Appeal, at the rate prescribed by s 101 of the Civil Procedure Act 2005 (NSW), such interest to be borne in the proportions of sixty (Parkview) to forty (Erect Safe). 21Blue Star, Parkview and Erect Safe accept that they are liable to pay interest to Mr Abrahim on the judgments against them. The following order is agreed: Each defendant pay to the plaintiff interest on the final judgment figure (after the final Fox v Wood component is added and after the workers compensation payments received by Mr Abrahim have been deducted), from the date of judgment of the primary Judge (23 November 2012), at the rate prescribed by s 101 of the Civil Procedure Act 2005 (NSW).

Costs 22It is common ground that no order as to costs should be made as between Blue Star and Mr Abrahim in respect of the trial. 23Blue Star says that the effect of the costs regime under the WC Act and the Workers Compensation Regulation 2010 (NSW) is that no order for costs can be made in favour of Mr Abrahim, even though he succeeded in his cross-appeal against Blue Star. Mr Abrahim accepts that this is so. However, Blue Star submits that since its cross-appeal on damages succeeded against Mr Abrahim, he should pay Blue Star's costs of its cross-appeal. Although it is not entirely clear, Mr Abrahim does not appear to dispute that this is appropriate. In any event, I think it is. 24Parkview and Erect Safe do not dispute that they should be ordered to pay Mr Abrahim's costs of the trial in the proportions that they have been found liable to pay damages. They contend and I accept that Mr Abrahim's inability to claim the costs of the trial against Blue Star should not be visited upon Parkview and Erect Safe. Since Blue Star's responsibility for Mr Abrahim's damages has been assessed at one sixth, Parkview should be ordered to pay one half of Mr Abrahim's costs of the trial and Erect Safe should be ordered to pay one third of those costs. 25I adhere to the view expressed in the Principal Judgment (at [146]) that there should be no order as to costs in respect of any of the cross-claims. 26Erect Safe argues that no costs order should be made on the appeal, as all parties had some success and some failures. Parkview's position as to the costs of the appeal is unclear. Mr Abrahim seems to support the orders proposed in the Principal Judgment. 27Blue Star accepts that it should pay Parkview's and Erect Safe's costs of their cross-appeals against Blue Star. 28Mr Abrahim accepts that he cannot claim the costs of his cross-appeal against Blue Star. With that exception, I consider that the orders relating to the cost of the appeals and cross-appeals proposed in the Principal Judgment should stand. 29I note that no party has sought orders under the Suitors' Fund Act 1951 (NSW).

Orders 30For these reasons I propose the following Orders: 1 Orders 1-6 made by the Court on 20 December 2013 are confirmed except that Order 4 is amended by the omission of the words "in part". 2 In addition to the Orders of Adams J set aside by Order 5 made by the Court on 20 December 2013, set aside Order 2 made by Adams J on 23 November 2012. 3 In lieu of Orders 1-8 made by Adams J on 23 November 2012, make the following orders: 1 Judgment in favour of the plaintiff ("Mr Abrahim") against the first, second and third defendants with liability amongst the defendants to be apportioned as follows: (a) the first defendant, Parkview Constructions Pty Limited ("Parkview") - one half; (b) the second defendant, Erect Safe Scaffolding (Australia) Pty Limited ("Erect Safe") - one third; (c) the third defendant, Blue Star Painting Solutions Pty Limited ("Blue Star") - one sixth; 2 Judgment against Parkview in the sum of $1,045,271.40. 3 Judgment against Erect Safe in the sum of $696,847.60. 4 Judgment against Blue Star in the sum of $133,875.84. 5 Judgment in part for the cross-claimant on the first cross-claim (Blue Star) against the first and second cross-defendants (Parkview and Erect Safe) on the first cross-claim. 6 Judgment in part for the cross-claimant on the second cross-claim (Erect Safe) against the first and second cross-defendants (Parkview and Blue Star) on the second cross-claim. 7 Judgment in part in favour of the cross-claimant on the third cross-claim (Parkview) against the first and second cross-defendants (Erect Safe and Blue Star) on the third cross-claim. 8 The judgment on all those cross-claims referred to in Orders 5, 6 and 7 above to be effected by the following: 1 payment of $60,873.75 by Parkview to Blue Star; 2 payment of $40,582.51 by Erect Safe to Blue Star. 9 The defendants pay, in addition to the judgment sums referred to, an amount to the plaintiff pursuant to the principles in Fox v Wood regarding tax paid on workers compensation benefits, such sum to be calculated on the amount of taxation on weekly compensation benefits paid up to date of final judgment in addition to the amount that was calculated in the assessment of damages as at November 2012, such an amount to be agreed and in default of agreement liberty to approach the Court. 10 Parkview and Erect Safe pay interest to Blue Star on workers compensation payments made by Blue Star between 4 February 2014 and the date of final judgment entered by the Court of Appeal, at the rate prescribed by s 101 of the Civil Procedure Act 2005 (NSW), such interest to be borne in the proportions of sixty (Parkview) to forty (Erect Safe). 11 Each defendant pay to the plaintiff interest on the final judgment figure (after the final Fox v Wood component is added and after the workers compensation payments received by Mr Abrahim have been deducted), from the date of judgment of the primary Judge (23 November 2012), at the rate prescribed by s 101 of the Civil Procedure Act 2005 (NSW). 4 Parkview pay eighty per cent of Mr Abrahim's costs of Parkview's appeal. 5 Parkview pay Erect Safe's costs of Parkview's appeal. 6 Blue Star pay Parkview's costs of its appeal, insofar as the costs relate to Parkview's appeal against the decision in favour of Blue Star. 7 Erect Safe pay eighty per cent of Mr Abrahim's costs of Erect Safe's appeal. 8 Parkview pay Erect Safe's costs of its appeal insofar as the costs relate to the apportionment of liability to Parkview. 9 Blue Star pay Erect Safe's costs of its appeal, insofar as the costs relate to Erect Safe's appeal against the primary Judge's decision in favour of Blue Star. 10 Mr Abrahim pay Blue Star's costs of its cross-appeal against him. 11 There be no order as to costs in respect of Mr Abrahim's cross-appeal against Blue Star.

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: 10 April 2014

Suitors' Fund Act 1951(NSW)

Workers Compensation Regulation 2010(NSW)

PROCEDURE - costs - workers compensation regime prevents recovery of costs by a successful plaintiff against an employer Legislation Cited: Civil Procedure Act 2005 (NSW) Suitors' Fund Act 1951 (NSW) Workers Compensation Act 1987 (NSW) Workers Compensation Regulation 2010 (NSW) Cases Cited: Abrahim v Parkview Constructions Pty Ltd (No 2) [2013] NSWSC 95 Abrahim v Parkview Constructions Pty Ltd [2012] NSWSC 1379 Fox v Wood [1981] HCA 41; 148 CLR 438 Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460 Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460 Category: Consequential orders Parties: In matter no. 2012/400220:

Ronnie Abrahim (First Respondent) Parkview Constructions Pty Ltd (Second Respondent) Blue Star Painting Solutions Pty Ltd (Third Respondent) Representation: Counsel: G Watson SC (Parkview Constructions Pty Ltd) G Hickey (Ronnie Abrahim) Solicitors: AR Connolly & Company Lawyers (Parkview Constructions Pty Ltd) Drexler & Partners (Ronnie Abrahim) Sydney Law Group (Erect Safe Scaffolding (Australia) Pty Ltd) Hicksons Lawyers (Blue Star Painting Solutions Pty Ltd) File Number(s): 2012/400220 2012/386915 Publication restriction: None Decision under appeal Jurisdiction: 9111 Citation: Abrahim v Parkview Constructions Pty Limited [2012] NSWSC 1379 Abrahim v Parkview Constructions Pty Limited (No. 2) [2013] NSWSC 95 Before: Adams J File Number(s): 2010/18002

Judgment 1McCOLL JA: I agree with Sackville AJA. 2GLEESON JA: I agree with Sackville AJA. 3SACKVILLE AJA: The Court delivered judgement in this appeal on 20 December 2013: Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460 ("Principal Judgment"). The nature of the proceedings and the outcome of the appeal appear sufficiently for present purposes from the following passages in the Principal Judgment: 3 ... Appeals have been brought by Erect Safe Scaffolding (Australia) Pty Ltd ("Erect Safe") and Parkview Constructions Pty Ltd ("Parkview") against two judgments of a Judge of the Supreme Court (Adams J). His Honour entered a verdict and judgment in favour of the first respondent to each appeal ("Mr Abrahim"), the plaintiff in the proceedings, against Erect Safe and Parkview. The verdict and judgment was for $2,302,830.77: Abrahim v Parkview Constructions Pty Ltd [2012] NSWSC 1379. 4 Mr Abrahim also sued his employer, the third respondent ("Blue Star"). The primary Judge dismissed Mr Abrahim's claim against Blue Star, finding that it had not been negligent. 5 In a second judgment, his Honour directed that Erect Safe was to pay sixty per cent and Parkview forty per cent of the judgment sum awarded to Mr Abrahim: Abrahim v Parkview Constructions Pty Ltd (No 2) [2013] NSWSC 95 ("Judgment No 2"). Each of Erect Safe and Parkview challenges the apportionment of responsibility. ...

At a glance

Court

Decision date

Before

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (5)