HAINES v GRANT [1991] NSWCA 138

HAINES v GRANT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and MEAGHER JJA 25 and 26 February 1991, 4 April 1991 [1991] NSWCA 138

CONTRIBUTORY NEGLIGENCE — plaintiffs passage is blocked by Fisheries Department inspectors — hand fed into winch — trial judge accepts plaintiff's evidence. HELD — trial judge's finding of no contributory negligence justified by the credibility of plaintiff's evidence. GENERAL DAMAGES — injuries to hand and spine. HELD — award not so large as to attract appellate intervention. ECONOMIC LOSS — plaintiffs unsophisticated book-keeping habits. HELD — tax returns not inconsistent with plaintiff's evidence. Trial judge did not err in accepting plaintiff's evidence.

Mahoney, Priestley and Meagher JJA This is an appeal from a judgment of Bruce AJ who awarded the plaintiff, Mr Grant, the sum of $306, 859.39, in respect of an accident on board the trawler "The Nordic" on 16 October 1984. The defendant appeals. Initially there were six grounds of appeal. The first three, which related to liability, were abandoned at the commencement of the appeal. There remained three grounds, one relating to contributory negligence (Ground 4) and two relating to quantum (Grounds 5 and 6).

In order to understand the appeal on contributory negligence, it is necessary to recount something of the accident which caused the plaintiffs injuries. The plaintiff was the skipper of the trawler which was trawling for fish in what is known as the "Danish Seine" method. TWO inspectors from the Fisheries Department had boarded the trawler. The plaintiff had to balance the engine of the winch with the trawler's wheelhouse engine, and he had to do so quickly. Whilst endeavouring to do so his passage was blocked by one of the inspectors, which forced him to move backwards and slip. In putting out his hand to save himself his hand was fed into the winch. It was submitted that he was guilty of contributory negligence in not asking the inspector to move. His evidence was that as he assumed that the inspectors were familiar with the operation he was conducting, each of them was standing where he was deliberately and there was therefore no point in making any request to them. His Honour accepted the plaintiff's evidence in this regard and found there was no contributory negligence. His Honour was entitled so to find. It is a finding based on credibility, and justified on the evidence. Mr Coombs QC for the appellant referred us to evidence given by the inspectors to the effect that they were not fully acquainted with the "Danish Seine" method of trawling. But this does not justify the appeal on this point. In the first place, it is not clear that his Honour accepted their evidence. In the second place, this evidence does not touch the real point, which is not the inspectors' actual knowledge but what the plaintiff reasonably believed to be their state of knowledge.