SERISIER v HAINES [1994] NSWCA 284

SERISIER v HAINES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and CLARKE JJA 20 June 1994, 29 November 1994 [1994] NSWCA 284

SHORTHAND WRITER — Injury to right arm and hand — Failure by employer to take appropriate action — Injury reasonable foreseeable SHORTHAND WRITER — injury to right arm and hand — failure by employer to take appropriate action — injury reasonably foreseeable — evidence of complaints by employee not adequate — not appropriate for court to assess damages — new trial required.

The appellant suffered an injury to her right hand and arm while employed by the respondent as a shorthand writer. She claimed damages in negligence on the grounds that the respondent had failed to provide a safe system of work and had failed to take appropriate action after she complained of symptoms. Held:

(1) Based on information in the respondent's possession at the time the appellant lodged a complaint about her symptoms, it was reasonably foreseeable that prolonged shorthand writing might cause injury to the appellant.

(2) A deficiency in fact finding, not the fault of the appellant, as to the nature of complaints by her to her employer between 19 August and 18 September prevented a finding, in the appeal, on the question whether the respondent failed to take appropriate action after complaint by the appellant. It would not be appropriate for this Court to make a finding on this matter.

(3) In view of questions raised about the appellant's credibility and some of her observations about these matters it would not in any event be appropriate for the court to assess damages even if the appellant were entitled to a judgment. Hence

(4) a new trial is the only way of satisfactorily dealing with this case.

ORDERS

1. Judgment below set aside.

2. New trial ordered.

3. Costs of the first trial to abide the second trial.