ANDREW MARK HORNE v THE PARRAMATTA HOSPITALS [1990] NSWCA 96

ANDREW MARK HORNE v THE PARRAMATTA HOSPITALS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, PRIESTLEY and HANDLEY JJA 22 October 1990, 22 October 1990 [1990] NSWCA 96

NEGLIGENCE — plaintiff wardsman in public hospital — back injured in connection with lifting patient — allegation that (a) system of work unsafe and (b) injury caused by unsafe system — trial judge holds that injury suffered otherwise than during implementation of allegedly unsafe system — judgment for defendant on this contested factual issue — on appeal, no basis for disturbing trial judge's findings of fact — appeal dismissed.

Priestley JA The appellant in this appeal was the plaintiff in proceedings heard at first instance by McInerney J. On the version of the facts given in the plaintiff's evidence he may well have succeeded in establishing negligence against the defendant employer. However, his version of the facts concerning liability was contradicted by other evidence and not accepted by the trial judge.

In the appeal his counsel recognised the difficulties involved in trying to persuade this Court to adopt factual findings contrary to those made by the trial judge on matters of disputed fact involving an assessment of the credibility of witnesses. In one respect, in the course of the argument today, he departed from this position in regard to one particular finding made by the trial judge and pursuant to leave of the Court the plaintiff's Notice of Appeal was allowed to be amended accordingly.

In a broad sense the plaintiff's submission was that the plaintiff should succeed even on his Honour's findings of fact; one version of this submission was subject to the qualification that one factual matter would need to be differently regarded by this Court; on another version of the submission the plaintiff would succeed even if this Court took the same view of the facts entirely.