WASTE RECYCLING & PROCESSING SERVICES OF NEW SOUTH WALES & ANOR. v. MEAFOU & ORS. [2004] NSWCA 462

Court of Appeal (NSW)|2004-12-15|Before: Beazley JA, Bryson JA, Campbell J

Background facts 6 At the time of the accident, the plaintiff was employed as a furniture removalist. He was 25 years old, was fit and had an excellent employment record. He had always worked in manual employment because, as it was described by his counsel, he was "functionally illiterate" although he had had 11 years of schooling. 7 In the accident, the plaintiff suffered a fracture of the 7th cervical vertebrae (C7). He had to wear a neck brace for a period of about 10 weeks immediately after the accident and took analgesic medication for some period of time. Three months after the accident and shortly after he ceased wearing the neck brace he had physiotherapy treatment for approximately 18 months. 8 Within about 5 months of the accident his neck movement was reasonable but he continued to have low cervical neck pain radiating into the scapular region. He was not exhibiting any neurological dysfunction at that time, nor has he since. A CT scan taken on 16 May 2001 showed that the fracture of C7 "appear[ed] to be solidly healed" and by late May 2001 his treating neurosurgeon, Dr. Bentivoglio, considered him fit to return to appropriate work but restricted him to lifting no more than 30-35 kilograms. Dr. Bentivoglio was of the opinion he would never again be able to work as a furniture removalist. 9 It is not necessary to review the balance of the medical evidence in detail save for the report of Dr. Vote as the trial judge found, and this finding is not challenged, that Dr. Vote provided "a balanced view of the plaintiff's physical condition". 10 Dr. Vote saw the plaintiff on 1 November 2001. At that time the plaintiff was not receiving any treatment nor was he taking any medication. He complained of a grinding sensation in his neck associated with movement but which was not productive of pain. He reported a tendency for his neck to periodically become "a little stiff". Dr. Vote considered that the plaintiff's symptoms were minimal at that time and that there was solid bone union of the fracture. The plaintiff had a full range of movement in his neck without neurological symptoms. Dr. Vote was of the view that the plaintiff needed reassurance as to the status of his neck and noted that provided that there was no evidence of significant disc damage (of which there was none on the radiological and other evidence at that stage), Dr. Vote was of the opinion that it was "quite that likely he would be … able to go back to moderate to heavy work". 11 Dr. Vote considered that the plaintiff had a 5% permanent impairment of his neck as a result of the injury. He added "[i]n the ordinary outcome of such a fracture most people are able to go back to their normal activities even involving heavy physical work. It is essential however to ascertain prior to him undertaking those activities that (a) his neck is stable, and (b) that there is no significant disc damage as a result of his injury". The plaintiff did not undergo any further medical investigation to establish that he had any such problem. 12 His Honour also relied on the evidence of Dr. Berry, to which I refer later in relation to past economic loss. There was no difference in Dr. Berry's opinion as compared to Dr. Vote's opinion. 13 The trial judge accepted that the plaintiff suffered pain in his neck extending down between his shoulders that caused him difficulty. His Honour accepted that pain of that nature in a person with limited education had to be considered as serious. His Honour also found that on the totality of the medical evidence, the plaintiff suffered some permanent disability in the neck and that that affected his ability to carry out his work. His Honour also found that given the appellant's pre-accident history and educational background, it would be difficult for him to retrain in a field outside of work that involved heavy physical activity. 14 The combined effect of his Honour's findings on the medical evidence and the plaintiff's own evidence, was that the plaintiff has some, but not significant, interference with his work capacity as a result of his injuries but that capacity is further restricted by the plaintiff's own pain.

Past economic loss 15 The plaintiff has not worked since the accident. He was, for a period of 12 months, attending upon Work Solutions, the workers compensation rehabilitation provider. There was no evidence as to precisely what rehabilitation Work Solutions provided to or arranged for the plaintiff, other than that the plaintiff gave evidence that, through it, he had made application for about 80 jobs and had attended interviews for 10, but had been unsuccessful in gaining employment. He said that when a prospective employer found out about his injury they were not interested in employing him. He had not been for any interviews for a period of about 18 months prior to the commencement of the hearing on 30 September 2003 giving as his reason that he had "just given up … I've tried so many times". 16 Against that background the trial judge made the following award for past economic loss. He allowed a period of total incapacity for a period of 12 months. At that time the plaintiff's agreed nett weekly earnings were $490.00 per week. In allowing that period of full economic loss his Honour stated that he took into account the report of Dr. Berry. Dr. Berry, who saw the plaintiff on 27 August 2001, considered the plaintiff to be permanently unfit for his pre-injury duties but fit for light sedentary duties that avoided twisting and turning movements of the neck and heavy lifting with the upper limbs. 17 His Honour found that there had been improvement in the plaintiff's medical condition after the assessment by Dr. Berry and that on the total medical evidence the plaintiff was fit to do certain work. His Honour thus found that for the period from 16 September 2001 to 16 September 2002 the plaintiff had an economic loss of $250.00 per week. In assessing the loss in that amount the trial judge took into account the fact that the plaintiff had been accessing the assistance provided by Work Solutions, but was unable to obtain work. 18 His Honour observed that the assistance from Work Solutions ceased in September 2002 but that the plaintiff had not obtained work since that date. His Honour found however, that "[o]n the medical evidence the plaintiff has a clear work capacity". His Honour noted that on the medical evidence, the pain of which the plaintiff complained had been described as minimal, but, his Honour accepted that the symptoms were not minimal to the plaintiff. I have already adverted to this. His Honour also noted that some doctors had stated that he could still do moderate to heavy work but that this remained untested as the plaintiff had not undertaken any such work. His Honour, having regard to these various matters, assessed economic loss from September 2002 to the date of trial at $100.00 per week. The effect of this finding was that the plaintiff had an incapacity of about 20%. This finding was clearly open on the evidence and reflects his Honour's acceptance of the plaintiff's complaints as restricting his earning capacity more than the medical evidence indicated was the case. 19 The trial judge did not, in assessing economic loss, refer to the plaintiff's loss of earning capacity. Rather, he approached the assessment of damages sequentially, looking at periods of disability from the date of the accident, and made an assessment of the amount that the plaintiff was losing by way of wages in that period. 20 It is apparent from his Honour's approach that, although he considered that the plaintiff's disabilities had settled by 12 months after the accident, he allowed him a significant period to find a job. It is also apparent that from 2 years after the accident, his Honour considered that the extent of disability had settled and thereafter remained constant. 21 The plaintiff contended however, that he was entitled to full economic loss from the date of the accident up until the date of trial. The essential argument advanced in support of that contention was that the defendants had failed to prove that the plaintiff had not mitigated his damage, a matter upon which it was submitted the defendants bore the onus. The plaintiff further contended that as the trial judge accepted him as genuine and as he had attempted to find work but was unable to do so because once a prospective employer found out about his injury "they just don't want to know about it", he had proved a total interference with his past earning capacity. 22 As a matter of law, it is correct to say that a party alleging a failure to mitigate bears the onus of establishing that case. However, in a damages claim such as this, the plaintiff has first to establish the loss of earning capacity and that it was that incapacity that caused him financial loss. The ultimate question for determination by his Honour was how the interference with the plaintiff's earning capacity was to be translated into an award of damages: Medlin v. State Government Insurance Commission (1995) 182 CLR 1 at 16. The mere fact that a person has not worked does not establish loss of earning capacity. In this case, the medical evidence accepted by his Honour was that the plaintiff had a significant and almost full residual earning capacity. His Honour found however, that the plaintiff was restricted by his own experience of pain in a way that was greater than indicated in the medical evidence and assessed a nett loss of earnings of $100.00 from September 2002 to the date of trial. His Honour's assessment of a loss of that amount impliedly involved a finding of an interference with the plaintiff's earning capacity of 20%. In respect of the 12 month period before that when the plaintiff was actively seeking employment through Work Solutions, it was open to his Honour to make a greater allowance for the effect that the interference in working capacity had on the plaintiff's ability to earn. 23 There may be cases where there is a fine line between a plaintiff's onus to prove interference with earning capacity and a defendant's onus to prove a failure to mitigate damage. Medlin was such a case. In my opinion, this case was not. Here, his Honour had assessed the plaintiff as having a significant residual earning capacity. Contrary to the plaintiff's submission, there was no onus upon the defendants to prove that there were jobs available to the plaintiff in the marketplace, given that assessment. Nor is it the law that because a party with some loss of earning capacity has not worked in the period up to the date of trial, that that party is entitled to an award of damages for total wage loss. This is so even if the party has had difficulty in finding employment, as was the case here. Subject to the correct application of principle, it is a question of fact for determination by the trial judge as to whether a plaintiff's incapacity is the cause in whole, or in part of the claimed economic loss. Here there was no evidence of the types of jobs that the plaintiff had applied for or how regularly he had done so. There was no evidence of precisely what information potential employers were given as to the plaintiff's medical condition, which from a medical view-point, was not serious. There was no evidence whether the plaintiff attempted to apply for lighter or part-time jobs or whether he had attempted to undertake any retraining. There was evidence, however, that at some stage, the plaintiff had given up looking for jobs. In my opinion, the findings made by his Honour were clearly open to him and no error of fact or law has been demonstrated.

Future economic loss 24 The plaintiff contended that his Honour also erred in finding that the interference with his earning capacity in the future was properly represented by a loss of $100.00 per week. It was submitted that his Honour ought to have found, on the evidence, that the plaintiff was entitled to be compensated not only for his reduced capacity but also for his reduced likelihood in finding suitable work. It was submitted that his Honour appeared not to have taken the latter into consideration. Senior counsel for the plaintiff, in advancing this argument, eschewed any alleged error based upon the inadequacy of the trial judge's reasons. Rather his argument was that the plaintiff had been accepted by the trial judge as having significant pain limitations in circumstances where he was a manual labourer with limited other skills who had not been able to find a job. 25 In my opinion, these submissions both overstate the effect of the trial judge's findings and misunderstand the onus upon a plaintiff. It is true that the trial judge accepted the plaintiff's evidence and, in particular, accepted his evidence that he felt pain. However, the trial judge does not have to, and in fact, is not permitted, to consider such evidence in isolation. The evidence has to be considered as a whole. I have already referred to his Honour's overall findings above as to the plaintiff's work capacity having regard to his injuries and have found no error in his Honour's determination. Having found a reduced earning capacity of about 20% as at the date of the accident, and in circumstances where there was no evidence that the plaintiff's condition would deteriorate, it followed that that degree of incapacity was the appropriate finding for the future, as his Honour in fact found. Accordingly, there is no basis for the challenge to future economic loss.

Assessment of superannuation benefits 26 The plaintiff next contended that his Honour erred in refusing him an adjournment so as to adduce evidence of the loss of superannuation benefits. The problem appeared to arise at trial in this way. In his Statement of Claim, the plaintiff included as part of his economic loss, the amount of the employer's contribution to superannuation. This appears to be a conventional claim made by plaintiffs, based upon an employer's legal obligation under the Superannuation Guarantee (Administration) Act 1992 (Cth) to make superannuation contributions based on the gross salary of an employee. As at the date of the hearing, the prescribed contribution was 9%. 27 Six weeks before the hearing, the plaintiff filed an Amended Part 9 Rule 27 Statement of Particulars in which he also claimed by way of past and future loss of superannuation benefits not only the employer contribution but also the earnings on the fund. The plaintiff relied upon Roads and Traffic Authority v. Cremona (2001) 35 MVR 190; [2001] NSWCA 338 in support of his entitlement to damages by way of earnings on the fund. It was not disputed by the defendants that such a claim could be made. However, the plaintiff, during the course of the hearing did not adduce any evidence as to the quantum of the claim for superannuation on either basis upon which it was made. 28 Subsequently, when on 23 February 2004, his Honour gave judgment in the matter, he indicated that he would give the parties time to reach an agreed figure in relation to superannuation benefits. After a short adjournment, two problems were foreshadowed to his Honour. The first related to the amount upon which the contribution was to be assessed. Junior counsel for the plaintiff indicated that it should be on the gross amount. There was some discussion between his Honour and counsel as to an appropriate way to deal with that. Junior counsel for the plaintiff then sought an adjournment so as to obtain an actuarial report first on the issue of the "grossed up figure" and "of the applicable … earnings on the fund". His Honour refused the application on the basis that no evidence had been led in the case up until that point and he did not propose to allow the case to be reopened. 29 The adjournment having been refused, junior counsel for the plaintiff submitted that the only thing that he could advance in support of the claim was that an allowance be made on the grossed up figure. His Honour indicated that he considered that the allowance should be made on the gross amount for the first 12 months after the accident. The reason for that, it would appear, is that, having allowed a full loss of earnings during that period, the figures for the gross earnings were readily available. His Honour made an allowance of 8% on that sum, that percentage figure being the applicable statutory rate for that period. His Honour then allowed 8% on the sum of $250.00 per week for 52 weeks and $100.00 per week for 75 weeks, representing the periods in which his Honour had allowed a nett income loss. His Honour then applied a rate of 9% on a future income loss of $100.00 nett per week, as reduced by the vicissitudes of 15%. 30 Having done the consequential calculations his Honour said: "Now I appreciate that that's a broad approach but on the evidence before the Court as presented I consider it's the only approach to adopt". 31 The actual awards for superannuation derived from these figures were $4,188.00 for past superannuation benefits and $8,845.00 for future loss of superannuation benefits. 32 The allowance for and method of valuation of superannuation benefits, has been the subject of judicial comment over the years: see, for example, Todorovic v. Waller (1981) 150 CLR 402 at 425-427. In New South Wales Ministerial Corporation v. Wynn (1994) Aust Torts Reports 81-304 Handley JA, Clarke and Sheller JJA agreeing, said that the trial judge had erred in including in the appellant's loss of future income the employer's superannuation contribution. His Honour said at 61,740: "With respect, this was clearly incorrect. The plaintiff has not lost her employer's superannuation contributions as such because they were never part of her actual earnings. What she lost was the superannuation benefits that she would ultimately have received, but for her injuries following her normal retirement. … Any such loss must be reduced to a present value at the date of trial. Proof of these matters normally requires actuarial evidence . The plaintiff made no attempt to prove the present value of her loss of superannuation benefits." (emphasis added) 33 The Court ordered that the plaintiff's weekly loss of nett earnings had to be reduced by excluding the employer's superannuation contributions. 34 In Ghunaim v. Bart (2004) Aust Torts Reports 81-731; [2004] NSWCA 28, McColl JA, Giles and Ipp JJA agreeing, observed that an allowance was often made for the loss of superannuation benefits notwithstanding that no actuarial evidence had been adduced. Thus, in Donovan v. Port Macquarie Base Hospital [1999] NSWSC 1274, Dunford J allowed loss of future superannuation benefits based on a gross weekly wage loss using some assessment suggested by counsel. The underlying basis for that assessment is not apparent on the face of the judgment. In Welsh v. Cotton Seed Distributors Ltd [2000] NSWSC 801, the claim made was again for the compulsory employer contribution to superannuation. The trial judge allowed that claim, making the assessment on the basis of 9% of the gross weekly wage. 35 In Thomson v. Mybner Pty. Limited (2000) 31 MVR 335; [2000] NSWSC 766, a claim was made for the loss of the compulsory contribution by the employer to the plaintiff's superannuation. Grove J noted that it had been agreed between counsel that the value of the employer's contribution was $77.00 per week. His Honour therefore assessed his award by taking that amount over the period of 23 years, that being the period in which his Honour had awarded loss of future earnings, and used the 5% tables. His Honour also applied the appropriate discount factor for the deferral of payment for 23 years, resulting in an allowance for the loss in the order of $18,000.00. 36 In this case, the plaintiff claimed both the employer contributions and the earnings on the fund. He relied upon Roads and Traffic Authority v. Cremona in support of his entitlement to the latter. With respect, I do not read Cremona as support for that proposition. Rather, and this is also apparent from New South Wales Ministerial Corporation v. Wynn a plaintiff is entitled to the ultimate value of fund that the plaintiff would have received but for the injury, reduced to its present value as at the date of trial. Proof of the quantum of that entitlement would invariably require expert evidence. Certainly, to award the present day value of both the employer contribution and the fund would involve "double dipping". It is possible that in claiming the 'earnings on the fund', as well as the employer contributions, the plaintiff was seeking to claim an amount that effectively was equivalent to the ultimate value of the fund, presumably reduced to its present day value. However, that is not clear from the way the claim was formulated. Taken at face value, a claim to the earnings on the fund is not supported by principle.

37 The trial judge refused an adjournment to allow the plaintiff's legal representatives to obtain actuarial evidence to prove the claim that was being made and made the assessment to which I have referred. Senior counsel for the plaintiff complained that on that assessment, which in part was based on nett income, the plaintiff had not received even the basic award to which he was entitled, namely, an award calculated on 9% of the gross loss of income. 38 Strictly, the correct approach to the assessment of future superannuation entitlements is as stated by Handley JA in Ministerial Corporation v. Wynn. However, there appears to have developed a convention for the assessment to be based upon the amount of the employer's contribution on the gross wage. That convention has the benefit of ease of calculation as well as savings in the costs of an expert's report. Experience in this Court suggests that it is the method now most commonly adopted by parties and is rarely, if ever, challenged. If there is dispute it tends to relate to the calculation of the sum rather than any dispute on matters of principle. Again it is the Court's experience that disputes as to calculations are eventually and invariably resolved by the parties. Although Handley JA was undoubtedly correct when he said that this head of damage is an entitlement to the assessed earnings on the fund, it could not be said, in my opinion, that a damages claim, by a person whose earnings were gained through employment which had no unusual features, that such a conventional approach to the assessment of superannuation loss, was erroneous. 39 Counsel for the defendants was prepared to accede to an assessment based upon the use of the employer contribution calculated in respect of nett loss of earnings, save for the period of 12 months in which the trial judge based the calculation on the known gross figure. He was not prepared to accede to a further or different approach based on the entitlement to earnings on the fund. Senior counsel for the cross-respondents did not seek to resile from the position taken by counsel at trial in this regard. Rather, his position was that the trial judge's award for superannuation ought not to be disturbed and that there was nothing as a matter of principle to be derived from Road and Traffic Authority v. Cremona, at least in relation to the facts of this case, that assisted the plaintiff. 40 In this case, the plaintiff had neither obtained an expert report nor put calculations to his Honour relating to the amount of the employer's contribution calculated on the gross wages. 41 Subject to agreement being reached by the parties, the plaintiff bore an onus to prove the loss of his superannuation entitlement. He did not do so in the course of the hearing and there was no error in the trial judge refusing leave to the plaintiff to re-open his case. In my opinion, this Court should not now give that leave, nor should it interfere with the award for loss of superannuation benefits by seeking to assess the value of the "grossed up amount" as the expression was used, of the partial loss of earnings which his Honour awarded so as to compensate the plaintiff for his lost earning capacity. The calculation is an assessment only and of its nature cannot be a precise calculation of a future loss. Given that the plaintiff had not provided assistance to the trial judge in the calculation of the amount, and as the amount involved is of relatively order, I would not interfere at this stage.

Costs 42 The Statement of Claim in this matter was issued on 14 November 2001. The plaintiff made a claim for indemnity costs based on a letter from his solicitor to the solicitor then acting for the first defendant, dated 11 February 2002. The offer of compromise dated 11 February 2002 was enclosed with a reply to a letter of particulars in answer to a request for particulars issued by the first defendant's then solicitor. On 14 March 2002, the plaintiff's solicitor wrote to the defendant's then solicitor asking for a response. On 20 March 2002, Sparke Helmore, solicitors, wrote a letter indicating that they had taken over carriage of the matter for the defendant. There was no suggestion that it did not become aware of the offer of compromise. On 7 November 2002 a settlement conference was held and the plaintiff again restated the offer of compromise. 43 Upon the change of solicitors there was correspondence between the parties in which the new solicitors informed the plaintiff's solicitors that the day to day operations of the waste transfer station were conducted by the second defendant and inviting the plaintiff to join the second defendant as a party. The plaintiff acceded to this and, on 1 July 2002, filed an Amended Statement of Claim. In the Amended Statement of Claim, it was pleaded that the first defendant was the owner, occupier and/or operator of the waste recycling station and that the second defendant had contracted with the first defendant to operate the waste transfer station. It was alleged that the injury was caused by either or both defendants. The particulars pleaded against each were identical. 44 At the conclusion of the trial, when the application for indemnity costs was made, counsel for the defendants asked for an adjournment as he perceived that there might be a conflict arising out of whether the contract between the first and second defendant covered the precise contingency in respect of which the trial judge had based his finding of negligence, namely, that the height of the railing was inadequate. 45 The offer of compromise was made under Part 19A of the District Court Rules. 46 Part 39A r.25 then governs the orders to be made when an offer of compromise is made. It provides: "25. (1A) The objects of this rule are: (a) to introduce an added element of risk in order to promote early settlement of actions without hearing or arbitration; (b) to compel the parties to an action, under threat of possible penalties in costs, to arrive at an early assessment of the amount of damages, if any, recoverable by the plaintiff; (c) to encourage the making and acceptance of reasonable offers of compromise by: (i) providing for penalties in costs to be imposed on a party who rejects an offer of compromise and does not at the hearing or arbitration of the action achieve a position better than he would have held if he had accepted the offer of compromise; and (ii) providing corresponding costs relief to the party making the offer; (d) to impart as much certainty to the imposition of costs penalties referred to in object (c) as may be imparted without substantial injustice; and (e) to provide a discretion in the Court to relieve a party from the imposition of a costs penalty, to be exercised only in an exceptional case and for the avoidance of substantial injustice. (1B) A decision of the Court to make or refuse to make an order for costs under this rule must be made in pursuance of the objects of this rule. … (4) Where an offer is made by a plaintiff 28 days or more before the hearing of the action commences, and the offer is not accepted by the defendant, and the plaintiff obtains an order for judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the Court in an exceptional case and for the avoidance of substantial injustice otherwise orders, the plaintiff shall be entitled to an order against the defendant for the plaintiff's costs in respect of the claim assessed on a solicitor and client basis." (emphasis added) 47 There was no dispute in this case that the plaintiff received an award of damages "no less favourable … than the terms of the offer". However, the defendants resisted an order for solicitor/client costs under sub-r.4, arguing that no offer of compromise had been made to the second defendant. His Honour found that once the plaintiff filed the Amended Statement of Claim nominating both defendants as defendants in the action, the action became "a different action to that in respect of which a notice of offer of compromise was served on 11 February 2002". His Honour found that as the plaintiff was proceeding on "a different action" there would be injustice to both defendants if an indemnity cost order was granted in respect of the offer of compromise of 11 February 2002. 48 It was not apparent from his Honour's orders but it is likely that his Honour considered that he was acting under Pt. 39A r.25(1A)(e) in making this order. 49 In my opinion, his Honour clearly erred in finding that the amendment to the Statement of Claim involved the plaintiff proceeding on a different action. The claim against the first defendant never changed. The particulars of negligence and the particulars of injury remained constant throughout. The only alteration or change in the claim was to add the second defendant. Senior counsel for the defendants rightly conceded that there was no basis upon which he could resist an order under Part 39A r.25(4) as against the first defendant. He maintained however, that no order could be made against the second defendant as no offer of compromise had been made to it. That is correct, subject to the qualification, that the offer of compromise was orally made to both parties at a settlement conference on 7 November 2002. This does not appear to be in dispute. However, in his submissions to the trial judge, junior counsel for the plaintiff submitted that it was the written offer of compromise made on 11 February 2002 upon which reliance was placed. In that circumstance, I am of the opinion that the order for indemnity costs ought to be made only against the first defendant. This may have little practical consequence given that at all times the defendants were represented by the same solicitor and counsel throughout the trial. However, that is a matter to which regard will need to be had on any assessment of costs. It may also be a matter which needs to be resolved more particularly between the defendants. 50 There are two other aspects of costs. The first is that because the defendants had sought an adjournment of the costs application because of a potential conflict of interest, another day's costs were incurred in arguing the application. As in my view the plaintiff should have succeeded or at least substantially succeeded on that application, I consider that he should have his costs of that day, also on an indemnity basis. I am of this view even though the plaintiff was not successful as against the second defendant. The same costs were incurred and in any event, it was the defendants who were not ready to argue costs on the day when the application was made and which the defendants ought to have anticipated would be made.

Costs on the appeal 51 The defendants' Notice of Appeal with Appointment was filed on 8 March 2004. On 19 March 2004 the plaintiff made an offer of compromise in accordance with Pt 52A r.22 of the Supreme Court Rules. On 22 March 2004 the plaintiff filed his Notice of Cross-Appeal. On 27 October 2004 at 5.20pm, the solicitors for the defendants confirmed that they had instructions from both defendants not to prosecute the appeal against the plaintiff. 52 The plaintiff contends that he is now entitled to an order for indemnity costs from 19 March 2004 in accordance with the provisions of Pt 52A r.22(4) of the Supreme Court Rules. That rule provides: "Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall … be entitled to an order against the defendant for the plaintiff's costs in respect of the claim from the day on which the offer was made, assessed on an indemnity basis in addition to his costs incurred before and on that day, assessed on a party and party basis." 53 The defendants resisted an order for indemnity costs on the appeal. Senior counsel for the defendants submitted that Pt 52A r.22(4) has no application as this was an appeal from the District Court: see South Sydney Council v. Morris (No. 3) [2001] NSWCA 200. He submitted therefore, that the only power the Court had to award indemnity costs lay in its inherent jurisdiction. The defendants submitted that the Court ought not to exercise that power in favour of the plaintiff in the circumstances here where the defendants had withdrawn the appeal but the plaintiff had continued to cross-appeal seeking to increase his damages, whilst at the same time relying, for costs purposes, on an offer of compromise in a sum lower than the amount of the District Court verdict. The effect of the defendants' submission was that the incongruity of the plaintiff's stance was obvious. 54 In my opinion this case is not governed by South Sydney Council v. Morris (No. 3). In that case, no offer of compromise had been made in the appeal proceedings. Rather, the plaintiff had relied upon an offer of compromise made pre-trial under the District Court Rules. Heydon JA, Meagher JA and Fitzgerald AJA agreeing, held the District Court Rules could not on their terms apply to the costs of the appeal as they only gave power to the District Court. His Honour pointed out that Part 52A r.22(4) did not apply either because that rule only applied in respect of an offer of compromise made under the Supreme Court Rules. 55 However, the plaintiff in this case made an offer of compromise after the appeal had been filed. The appeal constitutes proceedings in the Court so that Pt 52A r.22(4) applies to an offer made in accordance with that rule: see Manly Council v. Byrne [2004] NSWCA 123. Accordingly, the plaintiff is entitled to an order for costs in accordance with Pt 52A r.22(4). The plaintiff has succeeded in having a judgment in his favour no less favourable than the terms of his offer. In those circumstances, an order for indemnity costs ought to be made from 19 March 2004. 56 Accordingly, I would propose the following Orders:

Confirm the judgment with damages assessed in the sum of $313,532.00 in favour of the plaintiff (cross-appellant), verdict accordingly

Set aside the trial judge's orders regarding costs as against the first cross-respondent.

The first cross-respondent to pay the cross-appellant's costs. These costs are to be assessed on an indemnity basis from 11 February 2002 until and including 19 March 2004 (date of judgment of Puckeridge DCJ)

The second cross-respondent is liable with the first cross-respondent to pay the cross-appellant's costs of the application for costs heard by Puckeridge DCJ on 19 March 2004. These costs are to be assessed on an indemnity basis.

The cross-respondents to pay the cross-appellant's costs of the appeal. These costs are to be assessed on an indemnity basis from 19 March 2004 until the date of judgment.

The cross-respondents to have a certificate under the Suitors Fund Act 1951 (NSW) if so entitled. 57 BRYSON JA: The decision of this Court in NSW Insurance Ministerial Corporation v Wynn (1994) Aust Torts Reports 81-304 has not deterred Courts from assessing damages flowing from loss of superannuation benefits even if no actuarial evidence is tendered. The proper approach in principle is to assess the loss by reference to the present value of the superannuation benefits which the injured person would ultimately have received; this involves factors which cannot be reduced to precision. It is advantageous in complex and large claims, as in Roads and Traffic Authority v Cremona (2001) 35 MVR 190 to have evidence of actuaries, but in many cases Courts have acted without it: see Ghunaim v. Bart [2004] NSWCA 28 at [138] - [149] McColl JA. In relatively simple cases where injured persons have lost superannuation entitlements which would otherwise have been available at the end of employment careers, it is necessary to take a pragmatic approach. Difficulty of assessment does not deter Courts from making assessments of damages as well as the available information allows. Assessment of the present value of the lost stream of employer contributions does better justice than disallowing claims which are not supported by actuarial evidence about likely future values of accumulating funds, itself a highly indeterminate subject. As Beazley JA has shown, the assessment made by the learned Trial Judge was not unsatisfactory on the material available. I agree with Beazley JA. 58 CAMPBELL J: I agree with Beazley JA and Bryson JA. **********

Last Modified: 12/17/2004 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.

Suitors' Fund Act 1951(NSW)

Suitors Fund Act 1951(NSW)

CITATION : WASTE RECYCLING & PROCESSING SERVICES OF NEW SOUTH WALES & ANOR. v. MEAFOU & ORS. [2004] NSWCA 462 HEARING DATE(S) : 01/11/2004 JUDGMENT DATE : 15 December 2004

CATCHWORDS : DAMAGES - Past economic loss - Loss of earning capacity - Quantum - Onus - Plaintiff must first establish loss of earning capacity - A party with some loss of earning capacity who has not worked over a period up to trial is not necessarily entitled to damages for total wage loss. - DAMAGES - Superannuation - Assessment of loss of superannuation may be based on amount of employer's contribution. - COSTS - Offer of compromise - Amendment to Statement of Claim to join additional defendant - Offer of compromise not made to defendant - No order for indemnity costs may be made against a party to whom the offer of compromise was not made. District Court Rules 1973 LEGISLATION CITED : Supreme Court Rules 1970 Suitors' Fund Act 1951 (NSW) Superannuation Guarantee (Administration) Act 1992 (Cth) Donovan v. Port Macquarie Base Hospital [1999] NSWSC 1274 Ghunaim v. Bart (2004) Aust Torts Reports 81-731 Manly Council v. Byrne [2004] NSWCA 123 Medlin v. State Government Insurance Commission (1995) 182 CLR 1 CASES CITED : New South Wales Ministerial Corporation v. Wynn (1994) Aust Torts Reports 81-304 Roads and Traffic Authority v. Cremona (2001) 35 MVR 190 South Sydney Council v. Morris (No. 3) [2001] NSWCA 200 Thomson v. Mybner Pty. Limited (2000) 31 MVR 335 Todorovic v. Waller (1981) 150 CLR 402 Welsh v. Cotton Seed Distributors Ltd [2000] NSWSC 801 Waste Recycling & Processing Service of New South Wales (First Appellant/Cross-Respondents) PARTIES : Cleary Bros (Bombo) Pty. Limited (Second Appellant/Cross-Respondents)) Sonny Meafou (First Respondent/Cross-Appellant) Better Homes Removals Pty. Limited (Second Respondent) FILE NUMBER(S) : CA 40165/2004 R.R. Stitt QC/T.M. Rowles (Appellant/Cross-Respondents) COUNSEL : A. Morrison SC/W. Nicholson (First Respondent/Cross-Appellant) G.M. Watson SC/D. Saul (Second Respondent) Sparke Helmore (Appellant/Cross-Respondents) SOLICITORS : Dostalek & Co (First Respondent/Cross Appellant) Hunt & Hunt (Second Respondent)

(ix) A fresh offer of compromise made in accordance with the Supreme Court Rules enlivens the Court's powers under Part 52A r.22(4) to make an order for indemnity costs: Manly Council v Byrne [2004] NSWCA 123 .

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