Birdon Marine Pty Limited v Glenn Alexander Jepp [2009] NSWCA 147

Birdon Marine Pty Limited v Glenn Alexander Jepp [2009] NSWCA 147

The appeal was dismissed because the primary judge was correct to find no negligence by Macquarie in relation to the second accident: the activity of standing on the lowest rung of a step ladder for non-hazardous duties was within the suggested work restrictions. Birdon Marine was not permitted to advance on appeal a substantially different and more detailed Thackham valuation case, having run only a truncated broad-brush argument at trial and having failed to prove the value or allocation of past and future compensation payments. The primary judge's assessments of future economic loss and future out-of-pocket expenses were open on the evidence and correct.

Jurisdiction
Australia
Judgment Date
17 June 2009
Procedural Posture
Workers' Compensation and Negligence Appeal / Appeal From District Court of New South Wales Decision of Finnane DCJ Dated 10 December 2007
Outcome
Appeal dismissed.
Legal Topics
['workers Compensation Act 1987 (nsw) S 151 Z' 'workers Compensation Act 1987 (nsw) S 151 H' 'successive Injuries' 'third Party Liability' 'employer Contribution' 'future Workers Compensation Payments' 'assessment of Damages' 'future Economic Loss']
["workers' Compensation" 'negligence' 'damages' 'appeals'] ['workers Compensation Act 1987 (nsw) S 151 Z' 'workers Compensation Act 1987 (nsw) S 151 H' 'successive Injuries' 'third Party Liability' 'employer Contribution' 'future Workers Compensation Payments' 'assessment of Damages' 'future Economic Loss']

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Procedural Posture

Workers' Compensation and Negligence Appeal / Appeal From District Court of New South Wales Decision of Finnane DCJ Dated 10 December 2007

Legal Issues

  1. 1 ['Whether Macquarie was negligent or otherwise responsible for the second accident on 23 November 2002.' 'Whether the primary judge correctly applied Workers Compensation Act 1987 (NSW) s 151Z and the principles in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 to workers compensation payments for the second injury.' 'Whether Birdon Marine should be permitted on appeal to advance a more detailed Thackham calculation than was advanced at trial.' 'Whether the primary judge erred in assessing future economic loss and future out-of-pocket expenses.']

Ratio Decidendi

The appeal was dismissed because the primary judge was correct to find no negligence by Macquarie in relation to the second accident: the activity of standing on the lowest rung of a step ladder for non-hazardous duties was within the suggested work restrictions. Birdon Marine was not permitted to advance on appeal a substantially different and more detailed Thackham valuation case, having run only a truncated broad-brush argument at trial and having failed to prove the value or allocation of past and future compensation payments. The primary judge's assessments of future economic loss and future out-of-pocket expenses were open on the evidence and correct.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' 'The appellant to pay the costs of the first and second respondents.']