JAMES HARDIE AND COY PTY LTD v TOMPSON v ANOR [1998] NSWCA 114

JAMES HARDIE AND COY PTY LTD v TOMPSON v ANOR [1998] NSWCA 114

The compensation award must be reduced by the amount of statutory compensation payments in accordance with binding precedent; the trial judge's assessment of market rate for gratuitous services at $12 per hour with discounts for contingencies and non-compensable services was within discretionary bounds and not erroneous; no leave to cross-appeal was required as the appeal related to a final judgment sum exceeding $10,000.

Parties
Appellant: James Hardie & Coy Pty Ltd; First Respondent, Cross Appellant: Bruce Stanley Charles Tompson; Second Respondent: Goodyear Australia Ltd
Jurisdiction
Australia
Judgment Date
05 May 1998
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal allowed in part; cross-appeal dismissed.
Legal Topics
Damages Assessment, Dust Diseases Compensation, Gratuitous Services (griffiths V Kerkemeyer), Appeal Procedure
Torts Personal Injuries Workers Compensation Damages Assessment Dust Diseases Compensation Gratuitous Services (griffiths V Kerkemeyer) Appeal Procedure

Case Brief

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Parties

James Hardie & Coy Pty Ltd

Appellant

Bruce Stanley Charles Tompson

First Respondent, Cross Appellant

Goodyear Australia Ltd

Second Respondent

Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether payments made under s8(1)(a) of the Workers Compensation (Dust Diseases) Act 1942 are to be deducted from damages awarded for personal injuries
  2. 2 Whether the trial judge erred in the rate and discount applied for Griffiths v Kerkemeyer damages
  3. 3 Whether leave was required to cross-appeal from a component of the judgment under s32 of the Dust Diseases Tribunal Act 1989

Ratio Decidendi

The compensation award must be reduced by the amount of statutory compensation payments in accordance with binding precedent; the trial judge's assessment of market rate for gratuitous services at $12 per hour with discounts for contingencies and non-compensable services was within discretionary bounds and not erroneous; no leave to cross-appeal was required as the appeal related to a final judgment sum exceeding $10,000.

Court Disposition

Appeal allowed in part; cross-appeal dismissed.

Orders

  • Appellant's appeal as to deductibility of statutory payments allowed.
  • Judgment of Dust Diseases Tribunal set aside; in lieu, judgment for first respondent in the sum of $128,429.12.