Milne v SDN Children’s Services and BRC Recruitment Pty Ltd (No. 2)

1. [1]

   By an Amended Statement of Claim filed on 1 September 2022 (“the ASOC”), Cheryl Anne Milne (“the plaintiff”) commenced negligence proceedings against SDN CHILDREN'S SERVICES ABN 23000014335 (“the first defendant”) and BRC Recruitment Pty Limited (“the second defendant”).

2. [2]

   The Court delivered judgment with respect to that claim on 27 November 2024 in Milne v SDN Children’s Services and BRC Recruitment Pty Ltd [2024] NSWSC 1495 (“the primary judgment”) in which the following directions were made:

3. [3]

   As a result, the plaintiff filed supplementary submissions on 13 December 2024 accompanied with a proposed Short Minutes of Order. I briefly note, at this juncture, the plaintiff’s Short Minutes of Order may not be adopted because of the conclusions I have reached in this supplementary judgment. Directions for the filing of further Short Minutes of Order will be made by the Court at the conclusion of this judgment.

4. [4]

   The first defendant sought an extension in time to file supplementary submissions which was not opposed by the plaintiff. In that light, the Court granted the extension to the first and second defendants and the first and second defendants filed their supplementary submissions on 7 February 2025.

5. [5]

   In determining the issues in this supplementary judgment, the Court will hereafter use the short forms used in the primary judgment.

6. [6]

   An issue arose from the supplementary submissions of the plaintiff regarding a potential ambiguity concerning whether the primary judgment found there was a causal connection between the incident and the plaintiff contracting a knee infection in May 2018 and undergoing a secondary operation.

7. [7]

   In essence, the plaintiff sought to argue the effect of the primary judgment (and went further to challenge the discussion of the merit of the primary judgment) by contending that the Court found (or should have found) that there was a causal connection between the incident and the plaintiff contracting a knee infection in May 2018 and undergoing a secondary operation. The first defendant’s supplementary submissions, in this respect, accepted the Court had found against the causal link but did not provide in submissions any justification for that position while the second defendant contended that the position adopted by the plaintiff could not be properly maintained in the face of the primary judgment.

8. [8]

   On 20 February 2025, the Court sent a communication to the parties indicating that the Court did not accept the plaintiff’s contention as to the effect of the primary judgment in that respect and advised that reasons for that view would be expressed in this supplementary judgment (“the communication”). The communication also provided the parties an opportunity to amend their submissions on “damages” in light of the communication by filing further supplementary submissions within 7 days of that communication.

9. [9]

   In response to the communication, senior counsel for the plaintiff filed further supplementary submissions on 26 February 2025 which nevertheless maintained the plaintiff’s position in her supplementary submissions and further sought to reopen the causal connection issues. This approach was adopted notwithstanding the primary judgment and in the absence of any leave being sought or granted to take that step (submissions only having been invited with respect to damages and only in the light of the Court’s intimation of 20 February 2025). The plaintiff, notwithstanding the opportunity provided, also failed to submit further Short Minutes of Order having regard to the intimation the Court gave on 20 February 2025.

10. [10]

    The first defendant filed brief further supplementary submissions on 26 February 2025 which did not propose to make any further submissions but correctly stated “[t]he plaintiff’s submissions dated 26 February 2025 do not address the matters raised in the Court’s email dated 20 February 2025 but rather seek to challenge the findings already made by the Court. Those submissions should be disregarded by the Court”. The second defendant filed brief further supplementary submissions on 24 February 2025 which maintained their position in the supplementary submissions.

11. [11]

    The Court agrees with the first defendant’s submission that the plaintiff’s further supplementary submissions do not address matters raised in the communication and challenged findings already made by the Court. No leave was sought to do so until after the step was taken (and a submission made to re-open submissions) or any appropriate justification given for the application adopted. There was simply a desire to reopen argument after submissions were closed and judgment reversed. Accordingly, the plaintiff’s approach should be rejected.

12. [12]

    The Court should, however, deal with the plaintiff’s erroneous submissions as to the effect of the primary judgment

13. [13]

    What appears below are the reasons the Court do not accept the plaintiff’s challenge to the effect of the primary judgment with respect to their contention that the Court found there was a causal connection between the incident and the plaintiff contracting a knee infection in May 2018 and undergoing a secondary operation.

14. [14]

    In support of her position, in supplementary submissions, the plaintiff relied upon two sentences in [524] and [585(11)] [1] of the primary judgment said to support her position in this respect. Particular attention was focused upon the use of a double negative in [585(11)] (I note the same sentence also appears in [524] with the addition of the words “in my view” at the beginning of the sentence). The relevant part of [524] for this purpose was:

15. [15]

    Whilst there is a potential ambiguity in the double negative in [524] and [585(11)], in my view, no sensible reading of the primary judgment can give rise to the contention advanced by the plaintiff.

16. [16]

    First, the reasoning of the Court leading up to [524] lends of no other conclusion. I also note, in this respect, the final sentence of [524] makes plain the conclusion by the Court is in line with the opinions of Professor Shatwell and Dr Machart who both give evidence that sustains the denial of any causal link between the incident and the May 2018 knee infection and subsequent operation.

17. [17]

    Secondly, the Court dealt with the question of non-economic loss soon after the passage of the primary judgment at [524] and [543] to [549] make it abundantly clear the conclusion as to causation, with respect to the knee infection and subsequent operation, the Court had reached. Those passages of the primary judgment were as follows:

18. [18]

    When dealing with non-economic loss the conclusion is stated starkly. At [543] of the primary judgment the Court stated, “I have found that there was not a causal connection between the injury and her ultimate treatment for an infection (and consequently the further knee replacement surgery)”.

19. [19]

    Thirdly, the two passages relied upon by the plaintiff ([524] and [585(11)]) obviously derive as conclusions from the evidence examining the question to which the conclusion relates. What is prominent is that the opening words state “the evidence does not sustain”. The second “not” is plainly erroneous and should be removed as an errata or slip.

20. [20]

    Fourthly, to read the words “may not” in the second sentence of the extracted passage at [14] above, would result in the conclusion that the court had not determined the question. Those words are plainly intended to have the usage “shall not” or “are not”.

21. [21]

    I will now address the disputed matters arising from the parties’ supplementary submissions and further supplementary submissions seriatim.

NON-ECONOMIC LOSS

1. [22]

   The Court has earlier extracted [543] – [549] of the primary judgment concerning non-economic loss. I will not repeat them for the purpose of the analysis under this heading but would add two paragraphs from the same section of the primary judgment:

2. [23]

   In supplementary submissions the plaintiff returned to her original submission seeking 35% of a most extreme case to take account for the pain and suffering from the knee infection and subsequent surgery. The Court did not accept that position in the primary judgment based upon the plaintiff not having established causation in relation to the knee infection in May 2018 and subsequent operation. The Court did reach a conclusion of 25% of the most extreme case, but nonetheless invited submissions as to that amount before finally passing upon the matter. It is surprising that the plaintiff would have seen that as an invitation to return to her original position.

3. [24]

   The dissent by senior counsel for the plaintiff in supplementary submissions and further supplementary submissions into further merit-based argument on the issue of causation and non-economic loss traverses the Court’s judgment on the question and should not have been made.

4. [25]

   The first defendant made the following supplementary submissions in relation to non-economic loss:

5. [26]

   The Court agrees with the submission of the first defendant and determines that the percentage for the award for non-economic loss shall be 25% of the most extreme case.

6. [27]

   Under the Civil Liability (Non-economic Loss) Amendment Order 2024 (NSW) the maximum amount which can be awarded for non-economic loss from 1 October 2024 is $761,500.

7. [28]

   Accordingly, pursuant to s 16(3) of the Civil Liability Act 2002 (NSW), the Court awards the plaintiff damages of $49,500 for non-economic loss.

PAST ECONOMIC LOSS

1. [29]

   The primary judgment came to the following conclusion regarding past economic loss:

2. [30]

   In closing written submissions the plaintiff proposed the amount of $260,655.85. The plaintiff submitted the following in relation to that calculation:

3. [31]

   The plaintiff’s closing written submissions in reply, filed on 29 April 2024, (“the plaintiff’s reply submissions”) contained a schedule showing the breakdown of how the figure of $260,655.85 was calculated according to the appropriate ‘Annual Wage Review’ for each year under the Children’s services Award 2010.

4. [32]

   In supplementary submissions, the plaintiff, inter alia, submitted the following

5. [33]

   The first defendant, in supplementary submissions, made the following submissions on past economic loss:

6. [34]

   The second defendant, in supplementary submissions, made the following submissions on past economic loss:

7. [35]

   If fully accepted, the second defendant’s contention that damages for past economic loss should only be calculated using 20.5 hours rather than 30 hours because: (1) “she never worked this number of hours”, (2) she would have required substantial time off work “due to the inevitable total knee replacement”, and (3) the video surveillance material indicated that she “would have been available to undertake [menial] work”, would not, in my view, fairly compensate the plaintiff.

8. [36]

   A plaintiff “is not to be compensated for loss of earnings but for loss of earning capacity”: Arthur Robinson (Grafton) Pty Ltd v Carter (1968); [1968] HCA 9; 122 CLR 649 at 658. In my view, the calculation of past economic loss should proceed on the basis of the employment the uninjured plaintiff would have obtained, namely, employment for 30 hours per week. Both the plaintiff and the first defendant agree in that respect.

9. [37]

   The schedule of calculation in the plaintiff’s reply submissions accords with the primary judgment in that it uses the appropriate award rates during the appropriate time periods. Furthermore, the calculation is made on the basis of the plaintiff receiving remuneration for 30 hours per week.

10. [38]

    I agree with the submissions of the plaintiff that a percentage reduction to account for the probability that the plaintiff would have taken several months off work for the knee replacement surgery at some point in the future, regardless of the incident, is an appropriate method to calculate past economic loss. I also note that approach makes allowance for some of the concerns raised by the second defendant.

11. [39]

    Specifically, senior counsel for the plaintiff submitted the plaintiff should be awarded 90% of the claimed amount, namely, $234,500.

12. [40]

    I agree with that approach and, in the absence of any challenge to the plaintiff’s calculations as to quantum, I make an award of past economic loss in those terms.

FUTURE ECONOMIC LOSS

1. [41]

   The primary judgment held the following in relation to future economic loss:

2. [42]

   The plaintiff’s closing written submissions were extracted in the primary judgment (at [572]).

3. [43]

   In supplementary submissions, the plaintiff, inter alia, made the following submissions on future economic loss:

4. [44]

   The first defendant made the following supplementary submissions on future economic loss:

5. [45]

   The second defendant made the following supplementary submissions on future economic loss:

6. [46]

   There seems to be no dispute that the amount of $688.40 net per week is the correct award rate for the plaintiff for the calculation of future economic loss. Both the plaintiff and the second defendant use that figure in their submissions.

7. [47]

   When future economic loss is assessed as a lump sum, the present value of that future economic loss is to be determined by adopting the prescribed discount rate: s 14, Civil Liability Act. This rate is currently 5%: s 14(2)(b), Civil Liability Act.

8. [48]

   As submitted by the second defendant, it is appropriate to use the 5 percent table to calculate future economic loss. This table is an actuarial tool published by Furzer Crestani that is used to calculate a lump sum for future economic loss based off how many years remain until a plaintiff retires.

9. [49]

   The second defendant submitted that the plaintiff has 6 years remaining before reaching 67, however, that calculation was made based on the date the supplementary submissions were filed on 7 February 2025.

10. [50]

    As past economic loss has been calculated until April 2024, it is appropriate to calculate future economic loss from that time. In April 2024, the plaintiff was 60 years of age. As such, the correct figure for 7 years of the 5 percent table is 309.4.

11. [51]

    The sum of $688.40 multiplied by 309.4 is $212,990.

12. [52]

    That figure then requires further discount for vicissitudes. The reduction that would normally be imposed is 15%, which seems to accord with the position of the parties so far as they have turned their minds to that question.

13. [53]

    After the 15% discount is applied, the total amount of damages for future economic loss is $181,042. I make that award accordingly.

14. [54]

    Although the plaintiff raised both figures of $212,990.96 and $181,042.31 in closing written submissions, in supplementary submissions her final position seemed to be that the figure of $212,990.96 was correct or that “if an allowance is made for some residual earning capacity the plaintiff’s submission is that 90% of the plaintiff’s figure should be awarded, namely $190,000.00”

15. [55]

    The plaintiff’s submissions are unclear, inconsistent and cannot be reconciled. I also note, in that respect, that 90% of $212,990.96 is $191,691.86 not $190,000.

16. [56]

    Furthermore, I reject the first defendant’s submission to award the plaintiff $75,000 as a “buffer” for “this past period (From May 2018 to date) and the future”. This approach is similarly unclear, does not address matters contained in s 14 of the Civil Liability Act, and seems to lack any credibility.

17. [57]

    In the result, the Court awards the plaintiff damages of $181,042 for future economic loss.

Past loss of superannuation

1. [58]

   In relation to past loss of superannuation, the primary judgment was as follows:

2. [59]

   In supplementary submissions the plaintiff submitted the following:

3. [60]

   In supplementary submissions the first defendant submitted the following:

4. [61]

   In supplementary submissions the second defendant proposed past loss of superannuation should be calculated at 11% of the amount they submitted was the correct figure to be awarded for past economic loss. I note I have already rejected the second defendant’s figure in this respect.

5. [62]

   I agree with the submission advanced by the plaintiff that a further 10% reduction needs to be applied to align with the reduction of the plaintiff’s damages awarded for past economic loss.

6. [63]

   Before pronouncing the sum of damages awarded to the plaintiff for past loss of superannuation, it is appropriate to mention s 15C of the Civil Liability Act.

7. [64]

   Section 15C of the Civil Liability Act provides as follows:

8. [65]

   I note that none of the parties, in any of their submissions, made reference to s 15C of the Civil Liability Act.

9. [66]

   The plaintiff’s suggestion that the Court should make an award of $31,250 in consideration of the total amount ultimately awarded for past economic loss being $234,500 cannot be correct in the light of s 15C of the Civil Liability Act. This is because $31,250 is 13% of $234,500 which is much higher than “the minimum percentage required by law to be paid as employer superannuation contributions”: s 15C(2) of the Civil Liability Act.

10. [67]

    As of 1 July 2024, the Commonwealth Government set the minimum superannuation guarantee rate employers must pay employees as 11.5%. [2]

11. [68]

    In the result, the past loss of superannuation will be calculated at 11.5% of past economic loss.

12. [69]

    The final sum awarded for past loss of superannuation should be calculated and reflected in Short Minutes of Order which the Court will direct be filed.

Future loss of superannuation

1. [70]

   In relation to future loss of superannuation, the primary judgment was as follows:

2. [71]

   In relation to future loss of superannuation, the Court agrees with the procedure proposed by the first defendant in supplementary submissions that the calculation will be undertaken as part of the parties providing a final Short Minutes of Order reflecting this judgment.

3. [72]

   I confirm future loss of superannuation will be calculated at 12.87% in accordance with the Court’s finding in the primary judgment (at [575] – [576]).

FOX v WOOD

1. [73]

   The Court agrees with the procedure proposed by the first defendant that the calculation of the Fox v Wood (1981) CLR 438 (“Fox v Wood”) component of damages awarded to the plaintiff will be undertaken as part of the parties providing a final Short Minutes of Order reflecting this judgment.

PAST TREATMENT EXPENSES

1. [74]

   In the primary judgment (at [564]), I made an award of $83,288.46 in favour of the plaintiff for past treatment expenses.

2. [75]

   In supplementary submissions, the first defendant contended that the amount claimed for past treatment expenses should, in fact, be $82,288.46 instead of $83,288.46. This submission was based upon a schedule provided at the hearing by the plaintiff titled “PLAINTIFF’S SCHEDULE OF OUT OF POCKET EXPENSES”. That schedule, which the first defendant annexed to their supplementary submissions, lists the “total amount of fees” for “Medicare Notice of Charge” as $9,446.55, “Expenses as paid by the Workers Compensation Insurer” as $73,841.91 and the sum “total” mistakenly as $82,288.46. The correct addition of $9,446.55 and $73,841.91 is in fact $83,288.46.

3. [76]

   In the result, the Court awards the plaintiff damages of $83,288.46 for past treatment expenses.

PAST OUT-OF-POCKET EXPENSES

1. [77]

   The plaintiff claimed an amount of $73,841.91 for past out-of-pocket expenses.

2. [78]

   The first defendant submitted that the plaintiff’s claim for past treatment and past out-of-pocket expenses are “essentially the same”.

3. [79]

   In relation to past treatment expenses, the primary judgment was as follows:

4. [80]

   In relation to past out-of-pocket expenses, the primary judgment was as follows:

5. [81]

   The plaintiff’s supplementary submissions were as follows:

6. [82]

   In my view, the plaintiff’s approach involved double counting by claiming for the amount of $73,841.91 paid by the Workers Compensation Insurer, twice. As the first defendant submitted, the submissions of the plaintiff, in this respect, are “at best misleading”.

7. [83]

   No explanation was provided by the plaintiff as to the basis upon which this further amount should be awarded when the figure claimed for past out-of-pocket expenses seems to derive entirely from treatment expenses of exactly the same amount. Hence, there is no basis for any award for past out-of-pocket expenses in addition to the award for past treatment expenses.

8. [84]

   The Court makes no award of damages to the plaintiff for past out-of-pocket expenses.

FUTURE TREATMENT EXPENSES

1. [85]

   In the primary judgment (at [579]), I made an award of $150,000 in favour of the plaintiff for future treatment expenses.

2. [86]

   In the first defendant’s supplementary submission, senior counsel, Mr N Polin, was critical of the primary judgment and stated the following in relation to future treatment expenses:

3. [87]

   For clarity, I have extracted [106] to [108] of the first defendant’s closing written submissions as well as the proceeding heading. These were as follows:

4. [88]

   The first defendant’s contention that [108] of their closing written submissions should have been read by the Court as a submission opposing the award of damages for future treatment expenses is deficient at three levels.

5. [89]

   First, while future treatment expenses are mentioned, the reference is made under a heading “out-of-pocket expenses” and without any real expansion on the position. The first defendant was otherwise scrupulous in categorising subject areas through their submissions using headings.

6. [90]

   Secondly, the submission placed reliance upon evidence which clearly did not support the proposition advanced. The footnote reference to [108] of the first defendant’s closing written submissions and [17] of their supplementary submissions read “CB 511 paragraph 3”. Page 511 of the court books in this proceeding contained a “Medical Assessment Certificate” issued by Dr Yiu-Key Ho and not “the joint conclave report of the Orthopaedic Surgeons”.

7. [91]

   The third difficulty is that, if recourse is had to the opinions of the orthopaedic surgeons in their Joint Report on future treatment (and expenses), the responses do not bear out the proposition advanced by the first defendant in [108] of their closing written submissions and [17] of their supplementary submissions that “the plaintiff requires no further investigations or ongoing treatment".

8. [92]

   Questions (c) and (l) of the Joint Orthopaedic Surgeons’ Report bear upon the statement in [108] of the first defendant’s closing written submissions, and are as follows:

9. [93]

   The responses of the Orthopaedic Surgeons need to be viewed in the light of the primary judgment which found the incident “caused a material aggravation of the pre-existing osteoarthritis in the plaintiff’s left knee resulting in a total knee replacement surgery on 10 August 2016”. The Orthopaedic surgeons all agree there is a need for future treatment for the plaintiff, however, Professor Shatwell and Dr Machart deny the incident was the cause of that need. The Court in its primary judgment clearly rejected that view.

10. [94]

    In the result, the opinions of Professor Shatwell and Dr Machart are, to the extent of the inconsistency, diminished. The experts nonetheless talked about the plaintiff’s future treatment which does, even in the light of their original opinions, suggest the need for ongoing treatment at various levels to the extent of that finding.

11. [95]

    In response to question (c) of the Joint Orthopaedic Surgeons’ Report, Dr Endrey-Walder stated the plaintiff had “severe ongoing pain” which had “not resolved and is still plaguing her on a daily basis”. Dr Machart stated the plaintiff “continued to suffer pain” and “it is difficult to determine if and when the soft tissue injury ended”.

12. [96]

    In response to question (I) of the Joint Orthopaedic Surgeons’ Report, Professor Shatwell stated the plaintiff’s “future treatment needs may involve revision surgery for the left knee replacement if this fails”, while Dr Machart inferred the need for future treatment by stating that future treatment was not needed “as a result of the fall”, rather, it was needed as “a result of the poorly functioning knee replacement, the ultimate existence of arthritis and the underlying preexisting osteoarthritis”. Dr Endrey-Walder acknowledged the plaintiffs need for medications into the future.

13. [97]

    Given the findings of the primary judgment, any estimates given by the orthopaedic surgeons, as to the need for future treatment, must be amplified.

14. [98]

    In the result, the Court maintains its ruling in the primary judgment and awards the plaintiff damages of $150,000 for future treatment expenses.

S 151Z AND APPORTIONMENT

1. [99]

   With respect to s 151Z of the Workers Compensation Act 1987 (NSW) and apportionment, the primary judgment found the following (at [532-533]):

2. [100]

   In supplementary submissions, the plaintiff made the following submissions in this respect:

3. [101]

   In supplementary submissions, the first defendant made the following submissions in this respect:

4. [102]

   In supplementary submissions, the second defendant made the following submissions in this respect:

5. [103]

   Whilst I agree with the first defendant that the final calculation for apportionment under s 151Z of the Workers Compensation Act should await the Court’s precise findings as to damages and, therefore, be the subject of Short Minutes of Order, there is no basis established, in my view, for the Court to make other than a final determination of the appropriate apportionment.

6. [104]

   The factors identified by the second defendant as varying the amount of apportionment were already taken into account in the Court’s reasoning on this question and warrant, in my view, no change in the preliminary view expressed by the Court.

7. [105]

   In the result, the Court determines 70% liability against the first defendant and 30% liability against the second defendant.

CROSS CLAIMS

1. [106]

   The second defendant made a submission that cross claims should be dismissed with no orders as to costs.

2. [107]

   The basis for that submission was as follows:

3. [108]

   I agree with that submission and will make orders accordingly.

COSTS

1. [109]

   In supplementary submissions, the plaintiff sought an order against the first defendant for ordinary costs until 2 February 2024, and thereafter, indemnity costs on the basis that the plaintiff “made an Offer of Compromise and… has obtained a result more favourable to her than her offer”. The first defendant made no submissions on costs.

2. [110]

   As earlier mentioned in this judgment, the communication provided an opportunity to the parties to amend their supplementary submissions and in particular stated the following:

3. [111]

   The plaintiff did not respond to that invitation nor did she provide any evidence of an offer of compromise. The first defendant also failed to provide any submissions as to costs in their further supplementary submissions.

4. [112]

   Accordingly, I find there is no proper basis for the Court to award indemnity costs from 2 February 2024 against the first defendant, as there appears to be no evidence to support the plaintiffs claim that the plaintiff made an offer of compromise and obtained a result in the primary judgment more favourable to her than her offer.

5. [113]

   In the absence of any submissions by the first defendant as to costs, the Court considers that the matter should be resolved on the basis that costs should follow the event. There is nothing suggested that would involve the court engaging in an exercise of proportionality.

6. [114]

   I also note it is common ground that the second defendant’s costs are regulated by statute.

7. [115]

   As a result, I make an award for costs against the first defendant on an ordinary basis for the proceedings.

INTEREST

1. [116]

   The first defendant made bare submissions that the Court should not make any allowance for interest without any justification for the submissions or rejoinder to the plaintiff’s position and, in the circumstances, it effectively amounts to no submission at all.

2. [117]

   On the basis of no submissions being put to the contrary by the first defendant, I will proceed to consider the question of interest having regard to the supplementary submissions advanced by the plaintiff.

3. [118]

   The plaintiff made the following supplementary submissions on interest:

4. [119]

   In the absence of any contradictory submissions by the defendants and acknowledging the plaintiff’s reliance on s 18 of the Civil Liability Act and s 100 of the Civil Procedure Act 2005 (NSW), I consider that the plaintiff’s submissions may be accepted.

5. [120]

   In the result, in relation to the first defendant, interest will be payable at 3% on damages for past economic loss (I note s 18(1)(a) of the Civil Liability Act precludes the payment of interest on damages for non-economic loss). This amount will be calculated as part of the parties providing a final Short Minutes of Order the Court reflecting this judgment.

6. [121]

   The second defendant made the following supplementary submissions in relation to the payment of interest:

7. [122]

   Section 151M of the Workers Compensation Act is as follows:

8. [123]

   Subsection 151M(1) of the Workers Compensation Act provides that the plaintiff has “limited statutory entitlement” and “has only such right to interest on damage as is conferred by this section”.

9. [124]

   Patten AJ considered s 151M of the Workers Compensation Act in Andrew Goodman v Impact Hire Australia Pty Limited & Anor [2009] NSWSC 941. His Honour stated the following (at [14] – [18]):

10. [125]

    In this case, on the evidence before the Court, the plaintiff has failed to establish that information that would have enabled the second defendant to make a proper assessment of the plaintiff’s claim was given to the second defendant.

11. [126]

    In the result, pursuant to s 151M(4)(a)(i) of the Workers Compensation Act, interest by the second defendant is not payable.

CONCLUSION

1. [127]

   In the result, I confirm the following findings made by the Court in this judgment:

   1. (1)

      The Court awards the plaintiff damages of $49,500 for non-economic loss.

   2. (2)

      The Court awards the plaintiff damages of $234,500 for past economic loss.

   3. (3)

      Interest at 3% is payable by the first defendant on damages for past economic loss.

   4. (4)

      The Court awards the plaintiff damages of $181,042 for future economic loss.

   5. (5)

      Past loss of superannuation will be calculated at 11.5% of past economic loss.

   6. (6)

      Future loss of superannuation will be calculated at 12.87% of future economic loss.

   7. (7)

      The Court awards the plaintiff damages of $83,288.46 for past treatment expenses.

   8. (8)

      The Court awards the plaintiff damages of $150,000 for future treatment expenses.

   9. (9)

      The Court determines 70% liability against the first defendant and 30% liability against the second defendant.

   10. (10)

       The Court makes an award for costs against the first defendant on an ordinary basis. It is common ground that the second defendant’s costs are regulated by statute.

   11. (11)

       The cross-claims shall be dismissed with no order as to costs.

2. [128]

   The Court has reserved the parties the task of making calculations as to the final amounts of damages awarded to the plaintiff for superannuation, Fox v Wood and interest (only in respect of the first defendant).

3. [129]

   The parties shall bring in Short Minutes of Order reflecting the Court’s conclusion as to damages including the amounts requiring quantification in the light of this judgment.

ORDERS AND DIRECTIONS

1. [130]

   The plaintiff shall bring in Short Minutes of Order reflecting this judgment within 14 days of the publication thereof.