ARMITAGE v HAINES [1999] NSWCA 141

New South Wales Court of Appeal CITATION : ARMITAGE v HAINES [1999] NSWCA 141 FILE NUMBER(S) : CA 40927/97 HEARING DATE(S) : 8 March 1999 JUDGMENT DATE : 18 May 1999

PARTIES : Barbara Jean ARMITAGE v Trevor William HAINES JUDGMENT OF : Mason P at 1; Sheller JA at 48; Fitzgerald JA at 49

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 6259/97 LOWER COURT JUDICIAL OFFICER : Murrell DCJ

COUNSEL : F S McAlary/N Abadee (Appellant) H G Shore (Respondent) SOLICITORS : G H Healey & Co (Appellant) Eleonora G Scarparo (Respondent) CATCHWORDS : DAMAGES - Award of general damages - Review of a discretionary decision - Disproportionate to nature and consequence of injuries and disabilities - Compensatory damages; DAMAGES - Award for economic loss - Precluded by injury from further desired work - Future economic loss - Global award DECISION : Allowed in part

1 MASON P: The appellant challenges the adequacy of two items in an award of damages totalling $315,006 for a work injury involving negligence. The items are the award of $45,000 for general damages and $50,000 with respect to future economic loss. The respondent is a nominal defendant appointed to defend the proceedings on behalf of the State of New South Wales. The injury 2 On 25 June 1979 the appellant commenced employment as the clerk to Master Allen of the Supreme Court. In 1986 Master Allen was appointed a judge. During the week prior to his swearing in as a judge the appellant did most of the work involved in moving the judge's library and personal papers from his old to his new chambers. It was found that proper assistance had been refused. The appellant worked for prolonged periods lifting books and other items. She had to move about 1,000 books, many bundles of papers, personal files and many other items. This task involved a lot of bending, lifting, twisting and stretching. 3 The trial judge (Judge Murrell SC) found that the twisting motions in which the appellant was repeatedly engaged were attended by danger. There was a foreseeable risk of injury which could have been neutralised by the use of professional removalists or by the provision of an assistant and proper instruction as to lifting technique. The finding of negligence is not challenged on appeal. 4 The appeal proceeded on the basis of acceptance by both parties of the trial judge's findings in relation to the appellant's pre-existent medical condition, the impact of the lifting incident on the appellant's back, and the consequential disabilities suffered by the appellant.