Eltin Open Pit Operation v Jones [2001] NSWCA 247

New South Wales Court of Appeal

CITATION : Eltin Open Pit Operation v Jones [2001] NSWCA 247 FILE NUMBER(S) : CA CA 40876/00; CL 107/00 HEARING DATE(S) : 31 July 2001 JUDGMENT DATE : 31 July 2001

PARTIES : Eltin Open Pit Operation Pty Limited (Appellant) Matthew Kevin Jones (Respondent) JUDGMENT OF : Meagher JA at 42; Giles JA at 43; Studdert AJA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT 107/99 FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER :

COUNSEL : A.C. Bridge SC/D. Priestley (Appellant) B. Gross QC/J. Wynyard (Respondent) SOLICITORS : Hunt & Hunt (Appellant) Boyd & Longhurst (Respondent) CATCHWORDS : Negligence - assessment of damages - employment injury - allowances for past wage loss and future loss of earning capacity and for future domestic assistance - whether such allowances erroneous. LEGISLATION CITED : Workers' Compensation Act DECISION : Appeal allowed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40876/00 MEAGHER JA GILES JA STUDDERT AJA

Tuesday 31 July 2001

ELTIN OPEN PIT OPERATIONS PTY LIMITED v MATTHEW KEVIN JONES

JUDGMENT

1 STUDDERT AJA: In this appeal, the appellant, Eltin Open Pit Operations Pty Limited, challenges the quantum of damages assessed in the District Court by Judge Williams in proceedings brought against the appellant by the respondent Matthew Kevin Jones. 2 On 20 October 2000, his Honour having found the appellant to have been negligent in the circumstances alleged by the respondent, went on to assess damages and the plaintiff recovered a verdict of $553,174. There was some adjustment for workers' compensation payments received and his Honour directed the entry of judgment for the plaintiff in the sum of $551,069. 3 In the notice of appeal filed the appellant asserted that the judge fell into error on the issue of liability as well as the issue of damages. However, the appeal on liability has not been pressed. 4 The respondent was injured in the course of his employment with the appellant just two days after he commenced to work for it at its mine at Blayney. The respondent was employed as a nipper and the mine was a hard rock mine. As a nipper, the respondent assisted the operator of a machine which was used to drill holes for the placement of explosive charges in the rock. The respondent was injured when he lost his footing and fell whilst carrying a number of rock bolts. 5 The respondent sustained what his Honour found was "a reasonably significant injury to his back" . No doctor was called to give evidence but many reports were placed in evidence and his Honour reviewed the medical evidence in the course of his judgment in a manner to which no exception has been taken. It is unnecessary for present purposes to review the detail of the many reports considered by his Honour and referred to in his judgment. 6 The evidence established, as his Honour found, that the plaintiff had suffered a mild disc herniation at the L5/S1 level. His Honour accepted that the plaintiff had continuing pain and discomfort in his spine and that this could be very disabling and frustrating. In addition, there was an element of functional overlay but his Honour found this to be compensable. 7 The assessment of damages in this case was governed by the Workers' Compensation Act 1987 and his Honour assessed damages as follows: Allowance for non economic loss $88,040.00 Past economic loss 40,000.00 Loss of earning capacity 380,000.00 Allowance for future domestic care 42,500.00 Out of pocket expenses 2,634.00 $553,174.00 Less credit for payments under the Workers' Compensation Act 2,105.00 $551,069.00