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. The next ground of appeal concerned his Honour's finding of general damages in the amount of $100,000.00, which was alleged to be excessive. The evidence discloses that the plaintiff suffered an amputation of the fourth and fifth fingers of the right hand (at the terminal phalanx and the inter-pharyngeal joints 2 UNREPORTED JUDGMENTS respectively), a crush injury to the middle and index finger, a skin graft to the palmar aspect of his third right finger, a removal of the nail bed of the fourth right finger, a fracture of the eighth and ninth ribs of the right side, and soft tissue injury to the thoracic spine. More importantly, although the plaintiff has borne his injuries with Facey-like stoicism, his injuries rendered him unable to do and perform his normal tasks and activities, and (to quote his Honour) "has endured a major trauma which has deprived him and will deprive him of his principal activities and enjoyments of life". He not only could not continue as skipper of his trawler, but he was also forced to abandon his former sporting activities, which were fishing and shooting. It is true that he has borne his fate manfully, has attempted to re-adjust his life, does not complain, and at the date of the accident did not have much working life left. Yet the whole quality of his life was ruined. This award of general damages is undoubtedly high. Viewed in the abstract, it might be seen by some as at or beyond the upper limit of what could be awarded. But general damages must be assessed according to the effect of the injuries upon the particular plaintiff and the trial judge, having seen the plaintiff, was in a position of advantage in the assessment of the effect of the instant injuries upon him. Traditionally, appellate courts are slow to interfere with the assessment of damages for matters such as pain and suffering: Miller v Jennings (1954) 92 CLR 190 at 195. In the circumstances of this case, we do not consider that the award of general damages is so large as to attract appellate intervention. The next ground of appeal challenges his Honour's findings of past economic loss ($86,250.00) and future economic loss ($40,000.00). This was based largely on the plaintiff's oral evidence that he was earning "about $400.00 bucks a week". It is conceded that the evidence on this issue was thinnish, and that the plaintiff's book-keeping habits were not overly sophisticated. It was conceded also that there was a remarkable paucity of documentary evidence for his claim. It was also conceded that his personal income tax returns showed an income of $4,274.00 for the year ending 30 June 1983 and $4,424.00 for the year ending 30 June 1984, whilst his company's returns showed a profit for the year ending 30 June 1983 of $1,192.00 and for the year ending 30 June 1984 a loss of $8,148.00. Nonetheless the returns did disclose substantial director's fees, and many of the items in the company's profit and loss account could well have been payments to or for the benefit of the plaintiff. As the trial judge accepted the plaintiff generally, he could draw in his favour such inferences as the evidence allowed and on that basis the returns are not inconsistent with his assertion that he was earning $400.00 per week. This was also the figure which his successor as skipper of the trawler said he was earning. In these circumstances we cannot see why his Honour erred in accepting the plaintiff's evidence. In the result, the appeal should be dismissed with costs. Counsel for the Appellant: J S Coombs QC, J S Drummond Solicitors for the Appellant: N K Roberts, Crown Solicitor Counsel for the Respondent: R R Stitt QC, C R Hoeben Solicitor for the Respondent: Stacks