GORDON v ROSS [2006] NSWCA 157

New South Wales Court of Appeal

CITATION: GORDON v ROSS [2006] NSWCA 157 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 December 2005

JUDGMENT DATE: 22 June 2006

JUDGMENT OF: Hodgson JA at 1; Bryson JA at 8; Basten JA at 9

DECISION: (1) The judgment in favour of the plaintiff entered by the District Court on 10 March 2005 in the amount of $1,071,858.07 be set aside and judgment entered for the plaintiff in the District Court in the sum of $879,528; (2) Appeal otherwise dismissed; (3) Appellant to pay 80% of the Respondent's costs in this Court; (4) Grant the Respondent an indemnity certificate under s 6(1) of the Suitors' Fund Act 1951 (NSW), in respect of the appeal; (5) Liberty to the parties to apply within 28 days in relation to the calculation of the amount of the judgment or as to the basis for assessment of costs

CATCHWORDS: NEGLIGENCE – duty of care owed by employer to employee – employee struck in the back by heifer while cattle drenching – suffered serious neck injury – causation –whether failing to employ a third person to assist with drenching caused injury –whether there was contributory negligence on the part of the employee - EVIDENCE – whether file note was a 'business record' – whether payments by insurer an 'admission' - DAMAGES – whether the award for non-economic loss too great – whether damages should be reduced for board and lodging provided by relatives or friends –whether damages for loss of earning and future domestic care should be proportionately reduced for the possibility of improvement in condition

Civil Liability Act 2002, s15 LEGISLATION CITED: Evidence Act 1995 (NSW), s69, s81, s87 Workers Compensation Act 1987 (NSW), s60AA, s151G, s151K