COLLINS v LEMINGTON COAL MINES LIMITED [1999] NSWCA 293

New South Wales Court of Appeal CITATION : COLLINS v LEMINGTON COAL MINES LIMITED [1999] NSWCA 293 revised - 26/08/99 FILE NUMBER(S) : CA 49872/98 HEARING DATE(S) : 3 August 1999 JUDGMENT DATE : 3 August 1999

PARTIES : Christopher Edward Collins - C Lemington Coal Mines Limited - O JUDGMENT OF : Sheller JA at 1; Beazley JA at 16; Fitzgerald JA at 17

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 19/92 LOWER COURT JUDICIAL OFFICER : Nader ADCJ

COUNSEL : B S Robison/J A Loxton - C J D Hislop SC/N J Polin - O SOLICITORS : Maurice May & Co - C Sparke Helmore - O CATCHWORDS : Remitter to District Court for new trial limited to damages - trial Judge considers issues of liability - no damages awarded - appeal - new trial ordered ACTS CITED : N/A CASES CITED: N/A DECISION : Leave to appeal granted; Appeal allowed; Set aside the judgment and verdict of Acting Judge Nader; Remit the matter to the District Court for a new trial in accordance with order 3 made by this Court on 21 October 1997; Opponent to pay the applicant's costs of the hearing before Acting Judge Nader and of this appeal

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40872/98 DC 19/92 SHELLER JA BEAZLEY JA FITZGERALD JA

Tuesday, 3 August 1999

COLLINS v LEMINGTON COAL MINES LIMITED JUDGMENT

1 SHELLER JA: This case has had an unfortunate history. On 9 May 1996, his Honour Judge Gallen found that the plaintiff, Christopher Edward Collins, had established breaches by his employer, the defendant, Lemington Coal Mines Limited, of its duty of care to him and that the plaintiff had, as a result of those breaches of duty, which occurred between February 1984 when the plaintiff began his employment with the defendant and 30 June 1987, caused the plaintiff to suffer injury. 2 Judge Gallen entered a verdict and judgment for the plaintiff in the sum of $37,988. The defendant appealed to this Court. The appeal was limited to the assessment of damages made by Judge Gallen. This Court unanimously allowed the appeal, set aside Judge Gallen's judgment and remitted the matter to the District Court "for new trial limited to damages." 3 Early in his judgment, with which Cole JA and I agreed, Shepherd AJA observed: "At the hearing liability was in question. His Honour resolved this issue against the defendant [the appellant here], no appeal has been brought against that part of his Honour's decision." 4 Later in his judgment Shepherd AJA said: "The law is clear that a plaintiff will be compensated for the actual consequences of an injury including those which may be anticipated as likely to occur or which may possibly occur. But what is to be emphasised is that they must be the consequences of the injury upon which the appellant's cause of action is based. They may not be the consequences of other injuries distinct from that in respect of which the action is brought. Amongst the matters which it is proper to consider, particularly in cases of this kind is the fact that the original injury may make the plaintiff more vulnerable to further injuries of a similar kind. That is a matter which it is appropriate to take into account."