STATE OF NEW SOUTH WALES v HACKNEY [1996] NSWCA 489

STATE OF NEW SOUTH WALES v HACKNEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and COLE JJA 26 September 1996, 26 September 1996

[1996] NSWCA 489

NEGLIGENCE — FAILURE OF EMPLOYER TO PROVIDE A REASONABLY SAFE MEANS OF ACCESS TO PLACE OF WORK.

ASSESSMENT OF DAMAGES — INACCURATE HISTORY IN MEDICAL REPORT — CHALLENGE ON APPEAL WHEN MEDICAL EXPERTS DID NOT GIVE ORAL EVIDENCE.

Clarke JA The respondent was injured at about 6am on 12 August 1986 shortly after she had signed on for work as a youth worker at the Worimi Juvenile Justice Detention Centre. She brought a claim for damages in respect of that injury claiming, in short, that her employer, the appellant, had failed to provide reasonably safe means of access for her to her place of work and that she consequently suffered her injury. The case was heard by Craigie DCJ and took a number of days.

On 7 April 1994 his Honour gave judgment for the respondent and awarded her $101,617. That award took account of two deductions. The first was a deduction resulting from his Honour's finding that the respondent had been guilty of contributory negligence and that her contribution should be assessed at 10 per cent. In the second place his Honour made a deduction in respect of payments made under the Workers Compensation Act 1926.

The employer has appealed and in its amended notice of appeal has raised 8 grounds. However in it's written submissions it restricted itself to two challenges to the award made by the trial judge. Although there has been no formal abandonment of the other grounds, I have taken it from the written submissions and in the way the case has been argued that the other grounds have indeed been abandoned. Accordingly in this judgment I am concerned only with the two grounds which were pressed.

The first of those grounds challenges his Honour's conclusion that the respondent's contribution should be assessed at 10 per cent. In the written submissions counsel submitted that the evidence supported the finding that the damages should be reduced by up to 80 per cent. In oral argument, that rather extravagant claim was reduced to one in which it was said that the damages should be reduced by 50 per cent.