Allen v Bennett [2008] NSWDC 119

New South Wales District Court

CITATION: Allen v Bennett [2008] NSWDC 119

HEARING DATE(S): 22-23 October 2007, 27-29 February, 3 March 2008

JUDGMENT DATE: 1 August 2008

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1 Verdict and judgment for the plaintiff in the sum of $644,165.53. 2 The defendant is to pay the plaintiff's costs of the proceedings. 3 The exhibits are to be retained for 28 days.

CATCHWORDS: TORT NEGLIGENCE - tree lopper - Credit - multiple prior injuries - injury in course of employment involving motor vehicle - whether to be dealt with under legislation providing compensation for motor vehicle accident or work place injury

LEGISLATION CITED: Motor Accidents Compensation Act 1999

CASES CITED: Fox v Wood (1981) 148 CLR 438

PARTIES: Michael ALLEN (Plaintiff) Ian BENNETT (Defendant)

FILE NUMBER(S): Newcastle 21/05

COUNSEL: C A W Hart (Plaintiff) A P Capelin (Defendant)

SOLICITORS: Bale Boshev (Plaintiff ) TL Lawyers (Defendant)

JUDGMENT

1 Michael Allen claimed that he suffered injuries to various intestinal structures when his torso was compressed against the trunk of a eucalypt. At the time of his injury the plaintiff was working as a tree climber on a property at New Lambton. The plaintiff claimed that his injuries were the result of the negligence of his employer, Ian Bennett. The defendant denied negligence and did not accept the plaintiff's claims of loss and injury.

2 The issues involved in deciding the plaintiff's claim were: 1 The circumstances in which his injuries occurred. 2 Whether those circumstances involved negligence on the part of the defendant. 3 Whether the claim was appropriately brought pursuant to the provisions of the Motor Accidents Compensation Act 1999. 4 The nature and extent of the injuries suffered by the plaintiff. 5 The extent to which the plaintiff was to be compensated, in particular for loss of income earning capacity.