BORAL MONTORO PTY LTD v McMILLAN AND ANOR [1998] NSWCA 42

BORAL MONTORO PTY LTD v McMILLAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY and BEAZLEY JJA 4 March 1998, 4 March 1998

[1998] NSWCA 42

Damages — personal injury — back condition with 20% permanent impairment — general damages — past and future economic loss — cost of future surgery and physiotherapy

Mason P The respondent was injured at work on 11 June 1993 while loading large pallets stacked with ridge capping onto his truck. He was required to take sections of the ridge capping and load it on a small pallet so that it could be taken by forklift truck for shrink wrapping and then returned by forklift to his truck. It was dark.

As the respondent moved across a large pallet, his foot went down between the slats. He lost balance, fell backwards and landed on his back. The ridge capping fell on top of him. The learned trial judge, Donovan AJ, found each of the defendants liable for breach of their duty of care.

The respondent was a subcontractor to one defendant, DTM Pty Ltd and DTM Pty Ltd was a contractor to the other defendant, Boral Montoro Pty Ltd. The accident happened at the premises of Boral Montoro. This appeal is brought by Boral Montoro and is limited to the award of damages.

The respondent was born in 1950. He completed his fifth year of high school in 1966. In January 1969 he became a police constable and he continued with the Police Force until 1985. He retired from the Police Force with the rank of Detective Sergeant. He purchased a table-top truck for the purpose of undertaking haulage and delivery work. It was in this business, in partnership with his wife, that the respondent was engaged at the time of the accident.

The respondent consulted his general practitioner on the day of the accident. Initially he underwent acupuncture, heat treatment and physiotherapy. He was then referred to an orthopaedic surgeon, Dr Wallace, who first saw him on 9 July 1993. In August 1993 the respondent sold his truck. He has not returned to haulage work.