HEAD v AUSTRALIAN AIRLINES [1994] NSWCA 125

HEAD v AUSTRALIAN AIRLINES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MEAGHER and POWELL JJA 16-17 November 1994, 17 November 1994 [1994] NSWCA 125

DAMAGES — ASSESSMENT — industrial accident — permanent disability — challenge to award for future medical expenses — challenge to assessment of past and future loss of earning capacity — medical evidence of inappropriateness of pre-trial treatment regime — no allowance should be made for Medicare benefits — immaterial error — no error in assessment of loss of earning capacity.

ASSESSMENT OF DAMAGES

The appellant, who suffered injuries to his right elbow in an industrial accident, was left with a permanent disability in the form of irritation to the ulnar nerve, chronic pain syndrome, and depression. Damages were assessed at $388,857. The only challenges on appeal related to the assessment of costs of future medication and medical services, past loss of earnings and future loss of earning capacity. In relation to the first item the judge had taken into account medical benefits in one minor respect.

HELD

1) The judge was in error in taking medical benefits into account in one minor respect, but in the circumstances the error was not material. Handley v Datson [1980] VR 66 followed. 2) No other material error was shown. ORDERS

1. Appeal dismissed with costs.

Gleeson CJ The appellant sued the respondent for damages for personal injurieswhich he suffered in an industrial accident whilst in the employment of the respondent. Liability was admitted and the details of the accident are not of particular importance. It suffices to say that whilst the appellant was assisting in certain unloading operations which involved the use of a forklift, and was guiding a forklift driver who was manoeuvring his tynes on a pallet, the forklift driver negligently caused the pallet to move forward. The result was that the appellant's right elbow came sharply into collision with a metal part. The appellant suffered a fracture of the right olecranon spur and ulnar nerve damage. He is left with a permanent disability in the form of an irritation to the ulnar nerve which has, in turn, been responsible for chronic pain syndrome. The appellant also suffered depressive and emotional problems.