McAllan v Classic Home Improvements (Australia) Pty Ltd [2014] NSWDC 94

McAllan v Classic Home Improvements (Australia) Pty Ltd [2014] NSWDC 94

The defendant's vocational assessment evidence was excluded because it was not disclosed as part of the pre-filing defence and the defendant failed to prove that it was not reasonably available when the pre-filing defence was served or that exclusion would substantially prejudice its case. On the evidence, the plaintiff would probably have completed his apprenticeship, gained building qualifications and worked as a builder or in comparable building industry roles but for the injury, while his post-injury prospects of sustaining open labour market employment were very poor. Damages were therefore assessed using the plaintiff's proposed figures for past wage loss, past superannuation,...

Jurisdiction
Australia
Judgment Date
25 June 2014
Procedural Posture
Civil Tort Claim for Work Injury Damages / Principal Judgment After Trial; Liability Admitted and Damages for Past and Future Economic Loss Determined
Outcome
Judgment for the plaintiff; defendant to pay the plaintiff's costs; defendant's vocational assessment report excluded.
Legal Topics
['workplace Fall Causing Traumatic Brain Injury' 'assessment of Past and Future Economic Loss' 'future Loss of Superannuation' 'pre Filing Statements and Defences' 'admissibility of Evidence Not Disclosed in Pre Filing Defence' 'vocational Assessment Evidence']
['tort' 'workers Compensation' 'personal Injury Damages' 'civil Procedure'] ['workplace Fall Causing Traumatic Brain Injury' 'assessment of Past and Future Economic Loss' 'future Loss of Superannuation' 'pre Filing Statements and Defences' 'admissibility of Evidence Not Disclosed in Pre Filing Defence' 'vocational Assessment Evidence']

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Procedural Posture

Civil Tort Claim for Work Injury Damages / Principal Judgment After Trial; Liability Admitted and Damages for Past and Future Economic Loss Determined

Legal Issues

  1. 1 ['Whether the defendant should be granted leave under s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to rely on vocational assessment reports not disclosed with its pre-filing defence.' 'What past wage loss and past loss of superannuation should be awarded to the plaintiff.' "What future wage loss should be awarded given the plaintiff's injuries, disabilities and prospects in the building industry and disability services work." 'What future loss of superannuation and Fox v Wood component should be awarded.']

Ratio Decidendi

The defendant's vocational assessment evidence was excluded because it was not disclosed as part of the pre-filing defence and the defendant failed to prove that it was not reasonably available when the pre-filing defence was served or that exclusion would substantially prejudice its case. On the evidence, the plaintiff would probably have completed his apprenticeship, gained building qualifications and worked as a builder or in comparable building industry roles but for the injury, while his post-injury prospects of sustaining open labour market employment were very poor. Damages were therefore assessed using the plaintiff's proposed figures for past wage loss, past superannuation,...

Court Disposition

Judgment for the plaintiff; defendant to pay the plaintiff's costs; defendant's vocational assessment report excluded.

Orders

  • ['Judgment for the plaintiff.' "Defendant pay plaintiff's costs." 'Parties have liberty to apply in relation to costs, as well as bring in Short Minutes of Order reflecting the judgment sum and the payback amount to the workers compensation insurer.' 'Exhibits retained until further order.']