SIMSON and ANOTHER v HAZELWOOD [1998] NSWCA 210

SIMSON v HAZELWOOD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and SHELLER JJA 29 September 1998, 29 September 1998

[1998] NSWCA 210 DAMAGES — assessment — past economic loss — future economic loss

The respondent was injured when a crate of apples fell on him while he was working for the appellants. The appellants challenged the trial Judge's findings of fact relating to the fork lift the respondent had been operating at the time of the accident, and the assessment of damages for past and future economic loss.

HELD: Dismissing the appeal: (1) The findings of fact were open to Simpson J on the evidence and should not be disturbed. (2) The Judge's assessment for past economic loss was open to her. Neither side raised the issue of taxation at trial, and it was not addressed on appeal until one of the Judges made an inquiry of counsel. Accordingly leave to amend on this point should not be granted. (3) The figure awarded for future economic loss was reasonable.

Handley JA This is an appeal by defendants from a judgment entered by Simpson J on circuit at Bathurst on 23 August 1996 in favour of the plaintiff for $593,358.

The appellants owned and operated an apple orchard near Bathurst. In September 1989 the appellant, Mr Simson, asked the plaintiff to cart some bins of apples from a nearby orchard where they had been stored to his orchard. The apples were stored in large pine bins, four feet square, similar, not identical, to those illustrated in photographs which have been included in the appeal book. There were three cross beams under the bins which permitted them to be stacked on top of each other without crushing the apples. Each bin held 400 kgs of apples.

The plaintiff was asked to cart 110 full bins of apples and this he could do at the rate of thirty bins a load. The plaintiff drove to Walloroi Orchard where the apples were stored, loaded thirty bins without incident three deep on his truck and drove to the defendant's orchard. He was able to drive his truck into a shed which had a smooth concrete floor. He had to use a fork lift to unload the bins. On the day in question, the only fork lift that was serviceable and available for use by the plaintiff was a gas operated vehicle which had been owned by the defendants since about 1972.