Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd (No 2)

1. [1]

   I gave judgment in these matters on 15 May 2015, finding in each case for the plaintiff (see Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566).

2. [2]

   On 10 June 2015, the parties reported that agreement as to orders reflecting the judgment had largely been reached in both cases.

3. [3]

   That day the parties advanced various documents, which were marked:

4. [4]

   There was an error in the mfi and exhibit list which came to light after the directions hearing, which resulted in those documents being incorrectly marked. Those mfis have accordingly be remarked mfi 16, 17 and 18 respectively. The parties will be provided with a revised list to reflect those changes.

Ms Casey

1. [5]

   In Ms Casey’s case, I made orders on 10 June which quantified the sum Pel-Air was to pay her, which had been agreed subject to quantification of that part of the order which reflects damages for funds management, which depends on other proceedings presently on foot before the Court. A stay of part of the judgment sum was also agreed and I made orders reflecting that agreement, together with an order requiring Pel-Air to pay Ms Casey the balance of the judgment sum by 24 June 2015.

2. [6]

   Pel-Air did not consent to that latter order, which was sought by Ms Casey, but I considered it a just basis on which the stay agreed should be granted, having in mind not only what finally had to be resolved in her case at the hearing in February 2015, but also the time that has elapsed since the May judgment was given and the consequence of the judgment, once entered, for payments Ms Casey is currently receiving for her considerable ongoing medical needs, from the Workers Compensation insurer.

3. [7]

   The question of costs must also be determined. That must await finalisation of the funds management question. Ms Casey’s case is thus adjourned to 1 July 2015 at 9.30 am for further directions. The parties have liberty to approach if that date proves to be inconvenient.

Dr Helm

1. [8]

   In Dr Helm’s case agreement as to the orders to be made was also largely reached. There is, however, an issue between the parties as to whether the May judgment contains an error as to the calculation of Dr Helm’s future economic loss, which can be corrected in accordance with the powers granted by Rule 36.16 or 36.17 of the Uniform Civil Procedure Rules 2005.

2. [9]

   Pel-Air contended that I had misunderstood the parties’ submissions, with the result that an error was made, which ought to be corrected by substituting the figure $3,354 appearing at [366] of the judgment, with the figure $2,614.

3. [10]

   Dr Helm contended that there was no error and that I had correctly understood and accepted the case advanced on his behalf, as to the proper construction of s 12 of the Civil Liability Act 2002 (NSW) and its application to his circumstances. It was only if some clerical error was identified that the judgment could be corrected. There had not been any such error and accordingly, Pel-Air would have to pursue its case on this issue, on appeal.

4. [11]

   It is the resulting difference, of $197,216, which is the subject of the agreed stay. The conclusion which I reach about this issue has an impact on the cases which the parties wish to advance in relation to costs.

5. [12]

   The parties’ various written submissions on quantum in Dr Helm’s case were marked mfi 6 (Dr Helm’s submissions); mfi 10 (Pel-Air’s submissions); mfi 11 (Pel-Air’s submissions); mfi 12 (Pel-Air’s schedule future economic loss); mfi 13 (Dr Helm’s schedule commercial assistance and certain future treatment expenses); mfi 14 (Dr Helm’s schedule other future treatment expenses). Further submissions were sent by email for Dr Helm on 9 February; by Pel-Air, in response to mfi 13 and 14 on 23 February, with a further response for Dr Helm sent on 12 March.

6. [13]

   In Pel-Air’s 23 February submissions, the dispute was clearly identified to be between the figure $3,354 and $2,314, Pel-Air arguing that the $3,354 figure had not been adjusted for tax. Extracts from ABS statistics and Table 11A Average weekly earnings were attached, but what they purported to establish was not there explained. This was a response to the 9 February submission for Dr Helm that:

7. [14]

   In the May judgment I said:

8. [15]

   There is no issue about this. I then observed:

9. [16]

   It had been submitted for Pel-Air at paragraph 1 of mfi 10 that the figure of $3,614 had to be:

10. [17]

    I then observed in the May judgment:

11. [18]

    At mfi 13, that figure was adopted in Dr Helm’s calculation, “because of the cap provided by s 12CLA”.

12. [19]

    I then observed in the May judgment as to Pel-Air’s 23 February submissions in relation to mfi 13 and 14:

13. [20]

    In its written submissions on the alleged error (mfi 15), it was submitted by Pel-Air that the submissions advanced at paragraph 1 in mfi 11 had been overlooked, where it was said:

14. [21]

    It was also argued in mfi 15 that I had proceeded on the misapprehension that the $3,354 figure was the net figure, I having concluded at [366] of the May judgment that:

15. [22]

    The view that $3,354 was a figure less than Dr Helm’s net salary would be, after tax, but for his injury, rested on an acceptance of the submission advanced for Dr Helm on 9 February, that his after tax weekly earnings in the UK would at the relevant time have been $A3,580. It was common ground that this aspect of Dr Helm’s damages had to be assessed by reference to net figures. But for the effect of s 12, Dr Helm’s damages would have been calculated on that net figure.

16. [23]

    Section 12(2) however requires the Court “to disregard the amount (if any) by which the claimant’s gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award”. This required that any amount in excess of $3,354 had to be ignored. Accordingly, I concluded that the difference between that figure and the net figure $A3,580 had to be ignored when damages were calculated. I did not, however, accept that s 12(2) required the sum of $A3,580 to be further reduced, by application of notional tax, as had been argued in mfi 11.

17. [24]

    True it is that I did not specify in paragraphs [365] and [366] of the May judgment that it was mfi 11, where Pel-Air had advanced the argument that there had to be a further deduction for tax, from the $3,354 figure, as there calculated, to arrive at the $2,314 figure. That argument was however dealt with and rejected in the May judgment. As I there explained, Pel-Air’s approach to the construction and application of s 12 in Dr Helm’s case could not be accepted. The section did not require the agreed sum of $3,354 to be reduced, by deduction of an amount reflecting notional tax, as calculated by Pel-Air. Rather, it did not permit damages to be assessed at a figure exceeding $3,354, which was calculated on a gross basis. If that figure needed to be calculated on a net basis, as Pel-Air submitted was necessary, s 12(2) would have said so.

18. [25]

    Accordingly, this issue must be resolved in favour of Dr Helm and the following orders made:

19. [26]

    These orders also impose an obligation on Pel-Air to pay that part of what has been ordered which is not subject to the agreed stay, within 14 days. This, I consider is also a just basis on which the agreed stay should be granted in Dr Helm’s case, given what had finally to be resolved in his case at the hearing in February, the time that has elapsed since the May judgment was given and Dr Helm’s impending return to the UK.

20. [27]

    In his case, the parties propose to file written submissions on costs, which are accordingly also reserved.