Lolomanaia v Roads and Traffic Authority

[2000] NSWSC 522

NEW SOUTH WALES SUPREME COURT

CITATION:     LOLOMANAIA v. ROADS & TRAFFIC AUTHORITY [2000]  NSWSC 522 revised - 19/06/2000

CURRENT JURISDICTION:           Civil

FILE NUMBER(S):   No. 11135 of 1990

HEARING DATE{S):           20.7.99 - 30.7.99;  8.10.99;  19.5.00;  7.6.00

JUDGMENT DATE:            07/06/2000

PARTIES:
KEPUELI TAUFUI LOLOMANAIA v. THE ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES

JUDGMENT OF:      Greg James J     

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S):       Not Applicable

LOWER COURT JUDICIAL OFFICER:     Not Applicable

COUNSEL:
Plaintiff:  J. Coombs, QC./W. Washington/P.J. Doherty
Defendant:  D. Nock, SC./S. Torrington

SOLICITORS:
Plaintiff:  Bond & Bond
Defendant:  Hunt & Hunt

CATCHWORDS:
Damages - stay pending appeal - terms

ACTS CITED:

DECISION:
Verdict for the plaintiff

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

No. 11135 of 1990

GREG JAMES, J.

WEDNESDAY 7 JUNE 2000

KEPUELI TAUFUI LOLOMANAIA v. THE ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES

JUDGMENT

1. HIS HONOUR:  In the reserved judgment I have already published, I reserved to the parties the opportunity to have me reconsider certain of the figures so that the final sums awarded were arithmetically correct and correspond with the various findings I have made.  I have been informed that in particular those figures will require some adjustment in respect of an item of past loss of superannuation benefits together with interest thereon, which had been inadvertently omitted from the final total figure, an adjustment to accommodate the Manser v. Spry principle to which I have referred in the judgment and an overall adjustment in respect of interest and workers compensation payments made since the hearing of the matter.

2. In that respect the parties have agreed to provide me today with short minutes to enable the judgment to be finalised as at today so that it might be entered up today.

3. The short minutes will be provided to me in chambers and those short minutes will be attached to these remarks so as to form part of the overall judgment I handed down on 19 May 2000.

4. Those short minutes will provide for the adjustments under each item heading as set out in that judgment so as to enable an easy reference to individual findings and will provide for a total sum at least arithmetically agreed between the parties in respect of which judgment is to be entered.  One can expect that sum to be in the region of $900,000, it would appear from the figures referred to in paras.125 and 126 of the judgment.

5. Further an application has been made by the defendant for the grant of a stay to permit of an appeal.  The terms upon which that stay is sought are that execution on the judgment be stayed for 28 days from today or, in the event an appeal is lodged within that time, until further order.

6. A further term, which it is conceded would be appropriate, is that there be payment out of a portion of the judgment sum less the payments out of workers compensation already made totalling, I am informed, some $172,000 over the years.  It has been submitted that an appropriate percentage of the judgment sum should be approximately 50% less the payment out of that workers compensation, which would yield the payment to the plaintiff of the sum of approximately $350,000 and indeed that figure was put forward as a figure agreed on as representing the effect of that submission.

7. The plaintiff, on the other hand, whilst prepared to agree that, on the basis the defendant put its concession, that figure represents the figure the defendant contends should be paid, and accepting that a stay should be granted and that only a proportion of the judgment sum should now be paid, points to how long the plaintiff has been out of his money and to the fact that defendants have only asserted two likely grounds of appeal, the first of those being the relevance of the subsequent shoulder injury to the plaintiff's overall disability picture thereafter and, in particular, to economic loss, a matter which, to a very great extent, involves the consideration of questions of causation, peculiarly matters of fact for the trial judge in most circumstances, and an asserted error on my part in the exercise of my discretion to proceed to the hearing of all issues without a jury.  The latter, of course, the plaintiff contended was a course I should take and particularly referred to the defendant's late raising and non-pleading of what were then asserted to be complex issues, including estoppel questions involving considerations inappropriate for a jury, including what courses might have been taken on workers compensation applications.

8. It is not for me to do other on the stay application than consider the genuineness of the desire to test what may be arguable points or to deprive the defendant of the practical benefit of the statutory right of appeal.  But there is no suggestion here that the money is likely to be dissipated.  It was submitted that, in fact, the money might be better in court attracting Supreme Court interest, without that interest being liable for income tax, than in the hands of the plaintiff.  The plaintiff seems less than enthusiastic at this suggestion.  It is a suggestion to which I cannot accede.

9. I am of the view that the appropriate course is that, as submitted by the plaintiff's counsel, and conceded, a stay should be granted on the terms suggested, but that quantum of money for payment out should be fixed at approximately two thirds of the $900,000 approximate judgment figure less the workers compensation that has already been paid.  That would produce a figure of $600,000 less $170,000.  The parties are agreed in the circumstances the relevant sum should be $430,000.

10. I grant a stay upon terms:-

    (a)that execution on the judgment be stayed for 28 days from today or, in the event an appeal is lodged within that time, until further order;  and

(b)      that the amount of $430,000 of the judgment be paid to the plaintiff.

LAST UPDATED:    19/06/2000