Young v Masselos & Co

On behalf of the defendant in these proceedings, Mr Dicker has submitted that a discount of 30 per cent ought to be applied to the notional assessment on account of these factors. On behalf of the plaintiff, Mr Lidden SC submitted that a discount of no more than 20 per cent would be appropriate.

In assessing the appropriate percentage adjustment I have considered the following matters: (a) Although each case is determined on its merits, slip and fall matters have a notoriously high failure rate which in turn influences the settlement rate, indicating there was a high chance the plaintiff would have settled for a compromised sum rather than taking the real risk of losing his case;

(b) There was a good chance the plaintiff could have lost his case, even with a high standard of preparation and with credible evidence because: (i) the obvious and inherent risk provisions of ss 5G, 5H and 5I of the CL Act as well as the more demanding requirements of s 5B, stood as potential obstacles to success;

(ii) the plaintiff had been on the site for over 3 years patrolling the same area without reported incidents or accident;

(iii) one should never underestimate the facility for skilled and well prepared opposing counsel to wreak havoc upon, and undermine, a well prepared case, in combination with all the well known risks of litigation; (c) Although the risk of contributory negligence was assessed as being small, the availability of that argument in the notional case nevertheless requires that the risk be accounted for in this assessment;

(d) I accept the assessment made by Mr King SC to the effect that the case the plaintiff would have sought to make at the notional trial " could very readily fail ";

(e) The plaintiff may not have been able to maintain the psychological stamina of an initially courageous approach to the risk of failure as the case unfolded, on account of the matters set out in the report of Dr Pilsky. On advice, he may well have retreated to a more conservative settlement position to avoid the risk of losing;

(f) On the other hand, it must be assumed that at a notional trial, he would have been represented by experienced and competent lawyers, well prepared for a contest on all issues, and fortune may have favoured the brave, as sometimes occurs. In this regard, a decision to proceed to judgment may have resulted in a successful outcome for the plaintiff.

In taking these matters into account I consider that the appropriate discount to be applied is 20 per cent, which requires a deduction of $50,213.78 from the residual balance of $251,068.90. This reveals a further revised residual balance of $200,855.12.

Projected value of future payments of workers' compensation entitlements

The third required adjustment is to discount the residual balance of $200,855.12 by an amount of $150,000 to reflect the value of the plaintiff's future workers' compensation benefits as at the notional trial date, as was identified by Mr O'Halloran. I accept his calculation in that regard as it is reasonable and it has been made in accordance with accepted authority : Tipper.

The result of this adjustment reveals a further revised residual balance in the amount of $50,855.12.

Repayment of lump sum payments for permanent impairment

The fifth and final adjustment reflects the fact that on a successful completion of the barred litigation, the plaintiff would have to repay the amounts he had received as lump sums for impairment pursuant to ss 66 and 67 of the WC Act. These amounts have been identified as totalling $2500. Applying an adjustment for this amount, the final residual balance of the notional assessment, which represents the assessed damages in these proceedings, is revealed to be $48,355.12.

The foregoing analysis demonstrates that the plaintiff has sustained a loss caused by the negligence of the defendant: ss 5D and 5E of the CL Act. That loss would not have arisen without the claimed negligence.

The plaintiff is entitled to interest on the amount of $48,355.12 : s 100 of the Civil Procedure Act 2005. The Appendix to these reasons sets out the interest calculation on $48,355.12 as post-judgment interest in the barred claim assessed as pre-judgment interest in these proceedings in the amount of $18,989.63 : Schedule 5 of the Uniform Civil Procedure Rules 2005 and Practice Note DC (Civil) 15.

The plaintiff is therefore entitled to a verdict and judgment in the combined total of these two amounts in the sum of $67,344.75.

The plaintiff has succeeded in making out his claim and is therefore entitled to have his costs paid by the defendant on the ordinary basis, unless shown to be otherwise entitled.

I make the following orders: (a) Verdict and judgment for the plaintiff in the sum of $67,344.75 including interest;

(b) The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

(d) Liberty to apply on 7 days notice if further orders are required.

Period Date range Prescribed interest rate Days Interest amount

1.  01.07.2006 to 31.12.2006  9%                        184   $2193.86
   

2.  01.01.2007 to 05.03.2009  10%                       794   $10518.89
   

3.  06.03.2009 to 08.09.2009  9%                        186   $2217.71
   

4.  09.09.2009 to 30.06.2010  9%                        294   $3505.41
   

5.  01.07.2010 to 13.08.2010  9.5%                      44    $553.76
    Total                     -                         -     $18989.63
   

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