Crystal Wall Pty Limited v Pham [2005] NSWCA 449

New South Wales Court of Appeal

CITATION: Crystal Wall Pty Limited v Pham [2005] NSWCA 449

HEARING DATE(S): 4 November 2005

JUDGMENT DATE: 15 December 2005

JUDGMENT OF: Handley JA at 1; Santow JA at 2; McColl JA at 8

DECISION: (1) Appeal allowed.; (2) Judgment in favour of the respondent insofar as it ordered the appellant to pay the respondent $233,391.00 set aside and in lieu thereof order the appellant to pay the respondent $23,000.00.; (3) Respondent to pay 50% of the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if qualified.

CATCHWORDS: NEGLIGENCE – Employee injured whilst engaging in lifting activities – inconsistent accounts of how employee injured – whether finding that employer breached its duty of care open on the evidence – HELD - open to primary judge to find for the respondent if, on the whole of the evidence, he could reasonably infer the accident was due to the employer's negligence - DAMAGES – employee suffered muscular ligamentous strains and aggravation of pre-existing degenerative changes in low back – Workers Compensation Act 1987 – modified common law damages – whether employee's injuries constituted 30% of a most extreme case – HELD – assessment of 30% so unreasonable as to warrant appellant intervention – assessment of 20% substituted (D)

Workers Compensation Act 1987 LEGISLATION CITED: Workers Compensation Legislation Amendment Act 2001 Suitors' Fund Act 1951

Dell v Dalton (1991) 23 NSWLR 528 Doonan v Beacham [1953] HCA 38; (1953) 87 CLR 346 Ellis v Rantzos [2005] NSWCA 266 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Henry Walker Eltin Contracting Pty Ltd v Hrstic [2005] NSWCA 253 CASES CITED: House v R [1936] HCA 40; (1936) 55 CLR 499 Marsland v Andjelic (1993) 31 NSWLR 162 Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99 Rabay v Bristow [2005] NSWCA 199 Southgate v Waterford (1990) 21 NSWLR 427 Valeriani v Gibson [1963] NSWR 1430