Franco v Workers Compensation Nominal Insurer (No 3) [2021] NSWSC 503

Franco v Workers Compensation Nominal Insurer (No 3) [2021] NSWSC 503

The defendant had been given information enabling a proper assessment of the plaintiff's claim and had a reasonable opportunity to make a written settlement offer, at least after leave was granted on 17 July 2020, but no offer in writing was made. The schedule of damages and correspondence did not constitute a written offer, and oral offers at mediation or an informal settlement conference could not satisfy s 151M(4)(c). To the extent any offer was made, the award exceeded the statutory threshold. The statutory preconditions for interest under s 151M were satisfied, and the Court exercised its discretion under s 100 of the Civil Procedure Act 2005 (NSW) to award pre-judgment interest...

Jurisdiction
Australia
Judgment Date
10 May 2021
Procedural Posture
Common Law; Costs; Application for Pre Judgment Interest in Work Injury Damages Proceedings / Post Judgment Application After Substantive Reasons and Orders; the Plaintiff Sought Pre Judgment Interest Pursuant to Leave Granted by the Court.
Outcome
The plaintiff's application for pre-judgment interest was granted.
Legal Topics
['pre Judgment Interest' 'work Injury Damages' 'settlement Offers' 'statutory Preconditions Under S 151 M' 'calculation of Interest']
['workers Compensation' 'civil Procedure' 'common Law Damages'] ['pre Judgment Interest' 'work Injury Damages' 'settlement Offers' 'statutory Preconditions Under S 151 M' 'calculation of Interest']

Case Brief

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Procedural Posture

Common Law; Costs; Application for Pre Judgment Interest in Work Injury Damages Proceedings / Post Judgment Application After Substantive Reasons and Orders; the Plaintiff Sought Pre Judgment Interest Pursuant to Leave Granted by the Court.

Legal Issues

  1. 1 ['Whether the statutory preconditions in s 151M(4) of the Workers Compensation Act 1987 (NSW) were satisfied so that pre-judgment interest could be ordered.' 'Whether there was a written offer of settlement by the defendant for the purposes of s 151M(4)(c).' 'Whether any offer made by the defendant was unreasonable having regard to the information available to the defendant.' 'Whether the Court retained a residual discretion not to order pre-judgment interest once the s 151M preconditions were met.' 'What rate and period should be used to calculate pre-judgment interest.']

Ratio Decidendi

The defendant had been given information enabling a proper assessment of the plaintiff's claim and had a reasonable opportunity to make a written settlement offer, at least after leave was granted on 17 July 2020, but no offer in writing was made. The schedule of damages and correspondence did not constitute a written offer, and oral offers at mediation or an informal settlement conference could not satisfy s 151M(4)(c). To the extent any offer was made, the award exceeded the statutory threshold. The statutory preconditions for interest under s 151M were satisfied, and the Court exercised its discretion under s 100 of the Civil Procedure Act 2005 (NSW) to award pre-judgment interest...

Court Disposition

The plaintiff's application for pre-judgment interest was granted.

Orders

  • ['Order 5 issued by the Court in these proceedings on 22 February 2021 is vacated.' 'Pursuant to the provisions of s 100 of the Civil Procedure Act 2005 (NSW) and s 151M of the Workers Compensation Act 1997 (NSW), the defendant shall pay interest on the damages awarded on 22 February 2021 in the amount of...