BHP Steel (JLA) Pty Ltd v Khan [2001] NSWCA 215

New South Wales Court of Appeal

CITATION : BHP Steel (JLA) Pty Ltd v Khan [2001] NSWCA 215 FILE NUMBER(S) : CA 40751/00 HEARING DATE(S) : 27 June 2001 JUDGMENT DATE : 4 July 2001

PARTIES : BHP Steel (JLA) Pty Ltd - Appellant Mohammed Khan - Respondent JUDGMENT OF : Giles JA; Hodgson JA

LOWER COURT JURISDICTION : District Court LOWER COURT DC 9434/98 FILE NUMBER(S) : LOWER COURT Herron DCJ JUDICIAL OFFICER :

COUNSEL : G M Watson & J L Fredman - Appellant M Aldridge SC & A Lidden - Respondent SOLICITORS : Sparke Helmore, Sydney - Appellant L J Sharpe & Co, Rockdale - Respondent CATCHWORDS : PERSONAL INJURY - damages - evidence given in other proceedings - judgment in the other proceedings tendered - objected to but admitted - judge relied on what was said in the judgment for evidence given in the other proceedings - not admissible for that purpose - conclusion based in part on this evidence - judge's findings vitiated - new trial as to damages. DECISION : (1) Appeal allowed with costs; (2) Verdict and judgment for the respondent set aside; (3) Proceedings remitted to the District Court for a new trial limited to assessment of damages; (4) Respondent to have a certificate under the Suitors Fund Act if otherwise qualified.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40751/00 DC 9434/98

GILES JA HODGSON JA

Wednesday 4 July 2001 BHP STEEL (JLA) PTY LTD v KHAN JUDGMENT

1 THE COURT: The respondent, Mr Mohammed Khan, was employed by the appellant, BHP Steel (JLA) Pty Ltd, at its steel processing centre at Chullora in New South Wales. His duties included controlling the movement of skids containing steel moved by conveyor. He claimed that he suffered a back injury on 17 January 1996 when attempting to keep a deviant skid on its conveyor. He brought proceedings against the appellant. Herron DCJ found that he had suffered an injury for which the appellant was liable and awarded damages of $387,255. This appeal was concerned only with the assessment of damages. 2 The respondent had claimed to have suffered a back injury on 15 October 1986 whilst working for Brake & Clutch Industries Australia Pty Ltd ("Brake & Clutch"). He had brought proceedings against Brake & Clutch, and on 19 July 1996 was awarded damages by Garling DCJ. The appellant's case before Herron DCJ included that the respondent's impairment from injury to his back following the 1996 injury was not as great as the respondent maintained, indeed that the respondent was fit to undertake any employment within his skills, and that to the extent to which the appellant had an impairment it was due in whole or in part to the 1986 injury rather than the 1996 injury. His Honour effectively found that there was an impairment following the 1996 injury and that the 1986 injury did not contribute to that impairment. The respondent's damages were not tempered by an actual or potential effect of the 1986 injury on the respondent as at 17 January 1996 or thereafter. 3 While the appellant asserted more particular errors, its principal submission was that his Honour had erred in his findings in these respects. It was particularly said that his Honour failed to determine the nature and extent of the respondent's pre-existing injury; that so far as he determined that its effect was spent by January 1996 such a finding was not reasonably open on the evidence; and that the issue over the effect of the 1986 injury on the respondent as at 17 January 1996 gave rise to questions of the respondent's credit relevant not only to that matter but also to the extent of the respondent's impairment following the 1996 injury with which his Honour did not deal. As part of the submission, it was said that his Honour erroneously relied on the judgment of Garling DCJ in the Brake & Clutch proceedings for his acceptance that the effect of the 1986 injury was spent by January 1996. 4 In our opinion this last error was made out, and was of such significance that the judgment below can not stand. Regrettably, there must be a new trial limited to assessment of damages.