McLean v Darlington Point Sawmills Pty Limited [2005] NSWSC 1012

New South Wales Supreme Court

CITATION : McLean v Darlington Point Sawmills Pty Limited [2005] NSWSC 1012

HEARING DATE(S) : 14 - 17 June 2005, 20 - 22 June 2005

JUDGMENT DATE : 6 October 2005

JUDGMENT OF : Hislop J

DECISION : (1) There will be judgment for the plaintiff in the sum of $824,667.03; (2) The defendant is to pay the plaintiff's costs; (3) Liberty to the parties to apply within 7 days on the question of costs.

CATCHWORDS : Industrial accident - Contributory negligence - Assessment of damages

Supreme Court Act - s 76E LEGISLATION CITED : Workers Compensation Act 1987 - Pt 5, Div. 3, s 151G

Dell v Dalton (1991) 23 NSWLR 528 Ghunaim v Bart (2004) Aust Torts Reports 81-731 McLean v Tedman (1984) 155 CLR 306 CASES CITED : Medlin v SGIC (1995) 182 CLR 1 Southgate v Waterford (1990) 21 NSWLR 427 Sullivan v Gordon (1999) 47 NSWLR 319

Plaintiff - Philipha Louise McLean PARTIES : Defendant - Darlington Point Sawmills Pty Limited

FILE NUMBER(S) : SC 20083/00

Plaintiff - Mr AJ Bartley SC with Mr F Tuscano COUNSEL : Defendant - Mr DGT Nock SC with Mr J Gracie

Plaintiff - Porters Lawyers SOLICITORS : Defendant - Vardanega Roberts

LOWER COURT JURISDICTION :

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Hislop J

6 October 2005

20083/00 Philipha Louise McLean v Darlington Point Sawmills Pty Limited

JUDGMENT

Introduction 1 This is a claim by the plaintiff to recover damages for personal injuries sustained in the course of her employment with the defendant on 30 June 1998. 2 The principal injury involved the traumatic amputation of the plaintiff's left arm, shoulder, scapula and part of the clavicle. The injury occurred when the plaintiff's left hand was caught in a conveyor and she attempted to prevent herself being dragged further into it. 3 The defendant has admitted liability but contends the plaintiff was guilty of contributory negligence. The issues thus are contributory negligence and the assessment of damages, the latter being subject to the limitations imposed by the Workers Compensation Act 1987 ("the Act") Part 5 Division 3 as it was at the time of injury.