HASSIB v HAINES [1989] NSWCA 97

HASSIB v HAINES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and MEAGHER JJA 20 July 1989, 20 July 1989

[1989] NSWCA 97

CONTRIBUTORY NEGLIGENCE — DAMAGES — INADEQUACY — IMPAIRMENT OF EARNING CAPACITY — NO QUESTION OF PRINCIPLE INVOLVED

Clarke JA This is an appeal from an award of damages by Young J in favour of the appellant, in the sum of $73,500. The appellant challenges both his Honour's conclusion that the appellant had been guilty of contributory negligence and the assessment of damages. It is convenient to consider initially the argument of contributory negligence.

The appellant, who was at the time aged forty-one and had migrated to Australia from Afghanistan, was employed in March 1981 at the North Sydney Technical College as a general assistant, which I understand to mean an assistant gardener. One of his tasks was to operate a ride-on motor lawnmower in the college grounds.

He was performing this operation on 30 March 1981 when he sustained serious injury. What occurred seems to be that he needed to stop the mower during the course of the mowing in order to move some chairs or other lawn furniture. He duly stopped the mower, descended from it and cleared away the furniture. He then returned to the mower and started the motor. The mower was apparently in gear and started to move.

At this time the appellant was behind the machine and he saw it moving in the direction of a parked car. In his endeavours to either stop the machine or change its direction his foot slipped and came into contact with the rotating blades of the mower, with the consequence that he suffered a significant injury to his right foot.

The thrust of the case which he made, and which was accepted, was that the respondent had been negligent in requiring him to work a mower which was not properly or adequately guarded. Because there is no appeal from the finding of negligence it is unnecessary to descend into greater detail on the facts relating to the exact movement of the machine.