BRAY v WHITBY [1993] NSWCA 36

BRAY v WHITBY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and HANDLEY JJA 16 APRIL 1993, 6 May 1993

[1993] NSWCA 36

INJURY TO WORKER WHEN LOGGING — DUTY OF CARE OF EMPLOYER TO WORKER — WEIGHT TO BE GIVEN TO STATEMENT OF PLAINTIFF MADE TO INSURANCE ASSESSOR AFTER ACCIDENT — DUTY OF JUDGE TO GIVE WEIGHT TO ALL THE EVIDENCE — DAMAGES — ASSESSMENT OF ECONOMIC LOSS — PREDICTION OF PLAINTIFF'S FUTURE WORKING LIFE APPEAL from Common Law Divison — Worker injured in logging — Judgment for $480,000.

LIABILITY — Duty of care of employer to worker — Plaintiff injured when logs rolled on him — Duty of employer working with plaintiff to ensure care taken while plaintiff was in vicinity — No error by trial judge. Statement made by plaintiff to insurance assessor after accident — Weight to be given to statement — Duty of judge to take account of all of the evidence — No error by trial judge.

DAMAGES — Assessment of economic loss — Prediction of plaintiff's future working life — Use of comparable earnings — No error. General damages $90,000 — High but not appealably excessive.

INTEREST — Adjustment as to past general damages.

Mahoney JA On 5 September 1980 the plaintiff Owen Paul Whitby was injured while working for the defendants as a timber worker. In 1983 he commenced proceedings against the defendants to recover damages. He contended that their negligence had caused his injuries. On 27 February 1991 Grove J held that the defendants had been negligent and awarded damages to him. Judgment was entered for $480,00-0.

The defendants have appealed to this Court against his Honour's judgment. Their contention is that the plaintiff did not establish negligence and that, if he did, the damages were, in relevant respects, excessive.

The facts as found by the trial judge were as follows: