BOURKE v PAN PACIFIC PTY LTD (IN LIQ); BOURKE v LINER SERVICES PTY LTD (IN LIQ); BOURKE v CONAUST (NSW) PTY LTD [1996] NSWCA 58

BOURKE v PAN PACIFIC PTY LTD (IN LIQ); BOURKE v LINER SERVICES PTY LTD (IN LIQ); BOURKE vy CONAUST (NSW) PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and SHELLER JJA and COHEN AJA 19 November 1996, 4 December 1996

[1996] NSWCA 58

NEGLIGENCE — workplace injury — assessment of damages — credibility of witness — trial Judge's findings of fact not disturbed — Devries v Australian National Railways Commission (1993) 177 CLR 472

The appellant suffered workplace injuries on four separate occasions during his employment as a tally clerk. He was employed at the relevant times by the three respondents. The appellant brought four different sets of proceedings claiming damages in negligence. The first two claims concerned injuries sustained by the appellant on 27 April 1982 and 24 January 1983, while he was employed by the first respondent. The appellant claimed against the second respondent for injuries suffered on 5 August 1985, and also against and third respondent in relation to injuries suffered on 4 July 1986.

Sully J found that the 1982 injury was caused by the first respondent's negligence. His Honour found that the appellant had been incapacitated as a result of the injury, and that he should be compensated for loss of earning capacity and expenses up until his termination in October 1986. His Honour also concluded that the appellant's evidence should not be accepted on a matter of substance where it was not corroborated by independent evidence. His Honour give judgment in favour of the first respondent in relation to the second injury, because there was no evidence independent of the appellant himself to corroborate his allegations.

In relation to the third and fourth claims, his Honour found negligence on the part of the second and third respondents, and awarded general damages in favour of the appellant. The appellant appealed against the trial Judge's findings and treatment of the evidence, and claimed that the awards of damages were inadequate. He also argued that there should have been a finding of negligence against the first respondent in relation to the second claim.