ALLEN v MERCER AND SONS PTY LTD [1992] NSWCA 6

ALLEN v MERCER AND SONS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA

26 October 1992

[1992] NSWCA 6

APPLICATION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL — Application granted — Plaintiff to bear the costs of the application — Analysis of faults.

Mahoney JA This proceeding comes before me on motion. The plaintiff seeks on order:

"That the time for filing a Notice of Appeal herein be extended to expire seven days from the determination of this Motion".

the circumstances upon the basis of which the application has been brought are set forth in detail in the several affidavits which have been filed in support of the motion. I shall summarise them to the extent only that it is necessary to understand the submissions made and the basis of my conclusions.

The plaintiff was employed by Mercer and Sons Pty Ltd, the defendant. In 1981 he suffered injuries which, it is accepted, were caused by the negligence of the defendant. The circumstances of the injury and the nature of it are detailed at length in the summing-up of Finlay J to which I shall refer. The proceeding has been conducted on the basis that I may take from what was there said information as to the nature and extend of the plaintiff's claim.

The summing-up discloses that on 10 April 1981 the plaintiff fell through an opening in the mezzanine floor of the defendant's warehouse in Finlayson Street, Wollongong. He landed on the concrete floor some ten feet below and apparently struck his arms and the back of his head on the sides of the opening as he fell through. (The summing-up states that the accident occurred on 10 April 1981. In his affidavit in support of the present motion, the plaintiff states that the accident occurred on 20 June 1981. Nothing turns upon this discrepancy).

The plaintiff sued the defendant company for substantial damages. For reasons which do not appear, the proceeding did not come to trial until over nine years after the accident. It was tried before Finlay J and a jury on 21, 22 and 23 November 1988. The jury returned a verdict for the plaintiff for $17,000, an amount very much less than had been claimed by the plaintiff during the hearing. The trial judge deducted from the verdict worker's compensation that had been paid $8,936.99. To the balance $8,063.01 he added interest and directed judgment for the plaintiff for $16,075.01.