STATE RAIL AUTHORITY OF NEW SOUTH WALES v FEDA ALBOUCH [1989] NSWCA 191

STATE RAIL AUTHORITY OF NEW SOUTH WALES v FEDA ALBOUCH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, CLARKE JA and Hope AJA 15 August 1989, 15 August 1989

[1989] NSWCA 191

Gleeson CJ This is an appeal against a decision of his Honour Judge Dunford inthe District Court given on 29 October 1986. Counsel for both parties have indicated that following this appeal they will provide an explanation of how it came about that the appeal took nearly 3 years to come on for hearing in this Court.

The matter before the learned trial Judge involved the assessment of damages arising out of personal injuries suffered by the respondent in March 1983.

On the 1 March 1983 the respondent was a passenger on a train that was derailed at St Marys Station and subsequently she sued the State Rail Authority of New South Wales for damages for the personal injuries suffered by her in that accident. Liability was admitted and the matter proceeded for assessment only.

The respondent was aged 15 years at the time of the accident and was in Year 9 at High School. She was aged 18 years at the time the matter came on for hearing before his Honour Judge Dunford.

The evidence before his Honour consisted of the oral evidence of the plaintiff and a number of doctors' reports and associated documentary evidence. His Honour found the respondent to be a truthful witness and accepted her oral evidence. He found that as a result of the accident she was unconscious for a short time and suffered shock which caused her to weep and have difficulties in the period immediately following the accident. Since then she had occasional nightmares about the accident and was still fearful when travelling on a railway train. However, her main injuries were to her left wrist. She suffered a soft tissue sprain in that area with chronic tendonitis and also developed a traumatic ganglion which was surgically excised, but which had reappeared. His Honour, in his reasons for judgment, recounted the effect of the medical evidence and came to deal with the question of the respondent's employment history in the following terms: "After leaving school she enrolled at the Granville Technical College in a dressmaking course but was not notified by the College of when to report and, owing to the difficulties with her wrist she did not follow this up. She obviously, however, had a flair and desire to be involved in dressmaking as she obtained a position as a machinist with Hillcrest Clothing Pty Limited and commenced there in February 1985. However she had difficulties doing the work because of her left wrist and this is adverted to by Dr Donaldson in the report to which I have already referred. She tried to cover up her disabilities from her employer for some time, but ultimately had to go on light duties, and shortly after she was dismissed owing to her incapacity to do the ordinary work, and the lack of availability of light work. Since then she has tried without success to obtain other work, she is not trained for anything else and her efforts to obtain work through the Commonwealth Employment Service have been unsuccessful ".