ANNEAS BONFIGLIOLI v R W WINNING PTY LTD [1993] NSWCA 28

ANNEAS BONFIGLIOLI v R W WINNING PTY LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, HANDLEY JA and POWELL JA 8 December 1993

[1993] NSWCA 28

NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — NOT ESTABLISHED BY WORKER OPERATING UNDER EMPLOYER'S SYSTEM OF WORK.

DAMAGES — ASSESSMENT — BELOW PERMISSIBLE RANGE — REASSESSMENT BY THE COURT.

Clarke JA. The appellant was injured in the course of his employment with the respondent in the early 1980s. He did not allege a frank injury but asserted that the respondent devised and maintained an unsafe system of work which had led the appellant to serious back problems. He sued to recover damages and his case was heard by Newman J and a jury.

At the end of the trial the jury found that the respondent had been negligent, that the appellant had been guilty of contributory negligence, and that damages should be assessed at $130,000. In due course his Honour entered judgment for $52,591.83 reflecting the impact of workers" compensation payments on the assessment of damages.

The appellant has appealed from the decision and in the appeal has challenged the finding of contributory negligence and the assessment of damages. It is convenient to deal, first, with those questions concerning contributory negligence which were debated before the court.

At the outset I should point out that although the major ground of appeal was that there was no evidence of contributory negligence counsel for the appellant (whowas different counsel to the counsel appearing on the appeal) did not ever seek to have the issue of contributory negligence withdrawn from the jury. There is a suggestion in the written submissions of the respondent that this is an important consideration and that the court should not interfere unless satisfied that some substantial wrong or miscarriage has been occasioned.