HAINES v METZ [1991] NSWCA 139

HAINES v METZ SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBy P, CLARKE JA and SHELLER JA 3 December 1991

[1991] NSWCA 139

NEGLIGENCE — contributory negligence — unskilled labourer injures back when lifting heavy roll of filter cloth — negligence conceded for want of proper system of work — trial judge (Finlay J) dismisses employer's claim of contributory negligence — on appeal — held: (Clarke JA; Kirby P and Sheller JA concurring) No error shown in rejection of defence of contributory negligence by the employee. Retrospective hindsight of alternative methods of performing the work task did not amount to contributory negligence in the circumstances. Employee's inadvertence (if such it was) was not contributory negligence.

DAMAGES — impairment of future earning capacity — healthy male employee 28 y.o. — injury to back — pre-existing asymptomatic spondylolisthesis — proper discount for future vicissitudes — alternative approaches discussed — appellant contends 50% deduction required for future — trial judge (Finlay J) allows overall discount of 30% — held: (Clarke JA; Kirby P and Sheller JA concurring) No error.

Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, 494 applied. Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 applied.

Clarke JA. This is an appeal from a decision by Mr Justice Finlay awarding the respondent the sum of $398,516 in respect of injuries sustained by him on 2 January 1985 while working for the Soil Conservation Service pursuant to a Commonwealth Employment Scheme.

The judgment under appeal is, in my opinion, an admirable one and I am tempted merely to say that I would dismiss the appeal for the reasons given by his Honour. However, in deference to Mr Barry's earnest arguments, I feel that I should shortly state the reasons which lead me to the conclusion which I have already indicated.