Baker v Tolsat P/L [2002] NSWSC 407

New South Wales Supreme Court

CITATION : Baker v Tolsat P/L [2002] NSWSC 407 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20207/2001 HEARING DATE(S) : 19 March 2002 JUDGMENT DATE : 10 May 2002

Mitchell Stanley Baker (Plaintiff) PARTIES : Tolsat Pty Limited t/as Everson Wholesale Meats (Defendant) JUDGMENT OF : Master Harrison

Mr P Doherty (Plaintiff) COUNSEL : Mr G Charteris (Defendant) Garrett Walmsley Madgwick Lawyers Port Macquarie SOLICITORS : (Plaintiff)

P W Turk & Associates (Defendant) CATCHWORDS : Personal injury - negligence - damages Purkess v Crittenden (1965) 114 CLR 164 Jeffries v Roads & Traffic Authority of NSW (NSWCA, unreported 28 November 1997) CASES CITED : State Government Insurance v Oakley (1990) Aust Tort Reports Van Gervan v Fenton (1992) 175 CLR 327 Sullivan v Gordon (1999) 47 NSWLR 319 Malec v J C Hutton Pty Limited (1990) 169 CLR 638 DECISION : See para 50

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IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 10 MAY 2002

20207/2001 - MITCHELL STANLEY BAKER v TOLSAT PTY LIMITED t/as EVERSONS WHOLESALE MEATS

JUDGMENT (Personal injury; negligence; damages) 1 MASTER: The plaintiff seeks damages for a personal injury sustained in an accident that occurred during the course of his employment with the defendant. The accident occurred on 25 November 1998. The plaintiff claims that the defendant was negligent and breached its contractual and statutory duty. The defendant denies negligence. 2 The plaintiff was born on 1 November 1962 and is currently 39 years of age. The plaintiff attended school in Kempsey until Year 9 of high school when he was expelled for fighting. He described himself as a good student. After the plaintiff left school he obtained employment as an offsider to a mechanic. He also performed some labouring work in potato planting and boat building. His wife, Jennifer Waters described her husband as easy going prior to the accident. The plaintiff and his wife have been together for 16 years and have two children. 3 The defendant operates an abattoir service known as "Everson Wholesale Meats" at premises situated at 60 Collombatti Road, Frederickton, New South Wales. Between 1990 and 1996 the plaintiff was employed by the defendant as a slaughterman. He worked in the abattoir on the "kill" floor and boning room. He was involved in the slaughtering of animals, working in the boning room, slicing meat, gutting the cattle and trimming the bodies of meat. The plaintiff was retrenched for a short while in 1996. On 19 February 1997 he was re-employed by the defendant as a slaughterman. He resumed worked in the kill room and boning rooms. 4 It is convenient at this point to record that both the plaintiff and his wife gave evidence and were cross examined. I observed them closely while they gave evidence and formed the view that they were both truthful witnesses. The plaintiff was cross examined about a prior injury to his lower back but does not recall this injury. The plaintiff admitted that he has had about six visits to a chiropractor since 1988 up until 1996. He remembers having a shoulder problem. He may have attended the chiropractor on two occasions in relation to his back although he could not be sure. However, any injury the plaintiff may have had to his back never stopped him from working (t 16). The plaintiff said that he may have had a twinge here and there. This is largely consistent with Dr Morse (1 February 2002, p 4) reporting that the plaintiff told him he had attended a chiropractor for twinges in his back first in 1988 and then on a number of occasions in the 1990s, the last in 1996. He reported that he would have some treatment and recover and it did not affect his work or other activities. The plaintiff's evidence was that he had always worn a brace when performing heavy work but conceded that he recommenced work as a slicer in the boning room as it was less stressful on his back (t 17). Nevertheless, he actually worked in the boning room and the kill floor (t 17). Later in cross examination the plaintiff said that he might have mentioned that he wore the kidney belt to Ms Everson because of an injury to his back. I accept that prior to the accident the plaintiff may have had an occasional twinge in his back but this did not prevent him from working.