STATE RAIL AUTHORITY OF NSW v SHIMON [2000] NSWCA 382

New South Wales Court of Appeal

CITATION : STATE RAIL AUTHORITY OF NSW v SHIMON [2000] NSWCA 382 FILE NUMBER(S) : CA 40768/99 HEARING DATE(S) : 1 December 2000 JUDGMENT DATE : 1 December 2000

PARTIES : STATE RAIL AUTHORITY OF NSW v WILLIAM SLEWA SHIMON JUDGMENT OF : Mason P at 1; Priestley JA at 46; Heydon JA at 47

LOWER COURT JURISDICTION : District Court LOWER COURT DC1430/99 FILE NUMBER(S) : LOWER COURT Hogan A/DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: J Guihot Respondent: K Ryan SOLICITORS : Appellant: Creagh & Creagh Respondent: Ron Kramer & Associates CATCHWORDS : Damages - personal injury - credibility finding. ND DECISION : Dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40768/99 DC 1430/99

MASON P PRIESTLEY JA HEYDON JA

Friday 1 December 2000

STATE RAIL AUTHORITY OF NSW v William Slewa SHIMON

JUDGMENT 1 MASON P: Following a trial in the District Court the respondent was awarded a verdict of $773, 634 in relation to a work injury suffered on 20 November 1986. 2 The respondent was descending from the cabin of a dumper truck when he slipped and fell heavily, hitting his back on the ground. Negligence was found against the appellant, his employer and it is no longer in issue. 3 The trial took place before Hogan ADCJ in late 1999. Only two witnesses were called, the respondent and a private inquiry agent who filmed him performing various activities. Two bundles of medical reports were tendered with none of the doctors being required to attend for cross-examination. 4 No explanation appears for the delay in the prosecution of the proceedings that had been commenced in the District Court in 1987. There were proceedings in the Compensation Court in 1989. I mention these facts in the context of recording that the appellant does not suggest forensic disadvantage stemming from the delay in prosecuting the District Court action. 5 In a reserved judgment, the learned trial judge found negligence. Then, after a review of the evidence, he concluded in the following terms: In summary, as a result of the defendant's negligence, on 20 November 1986 the plaintiff suffered a fall which injured his back. No bones were broken. The fall was sufficiently severe to require a stay of about 12 days in hospital. Over a period of about 18 months he made a number of attempts to return to work, which were not successful because of pain. He has not worked since mid-1988 and it is obvious that he will never be fit for work in the future. Although there is spinal pathology in the lower back and to a lesser extent in the cervical area, there is no obvious nerve root involvement. There is no treatment that can improve his condition. There has been significant emotional overlay over the years. He is not in constant agony. The level of pain fluctuates, becoming worse after any prolonged or strenuous activity. Medication relieves the pain to some extent. Sometimes the pain is very bad. Sometimes there is no pain at all, but periods without pain probably do not last long. That has been his condition since 1986. He is not going to get any better. He may get worse. There is no evidence that he has anything more than a normal life expectancy, which would be about 25 years.