STATE OF NEW SOUTH WALES v MAXWELL [2007] NSWCA 53

New South Wales Court of Appeal

CITATION: STATE OF NEW SOUTH WALES v MAXWELL [2007] NSWCA 53

HEARING DATE(S): 22 March 2006

JUDGMENT DATE: 21 March 2007

JUDGMENT OF: Mason P at 1; Beazley JA at 120; McColl JA at 1

DECISION: Appeal allowed in part.

CATCHWORDS: APPEAL AND NEW TRIAL – interference with judge's findings of fact – findings based on impressions of credibility of witness – alleged unreliable, dishonest witness – where judge prefers evidence of witness over prison officers - APPEAL AND NEW TRIAL – points and objections not taken below – point not taken at trial or in submissions – not allowed to be raised on appeal – contrary to assumption on which trial was held - APPEAL AND NEW TRIAL – damages – assessment – amount manifestly excessive – average weekly earnings – vicissitudes – where other unrelated factors present to diminish earning capacity not taken into account by judge - NEGLIGENCE – duty of care – special relationship – state and prisoner – prisoner operating crane – fall when alighting from crane – crane wheels normally used for alighting not fixed to the ground - WORKERS COMPENSATION – assessment – percentage whole person impairment – whether claimant meets threshold – where expert evidence does not directly deal – where court determines percentage impairment – Workers Compensation Act 1987, s 151H – Workplace Injury Management and Workers Compensation Act 1998, s 322 – Workcover Guidelines – Crimes (Administration of Sentences) Act 1999, s 122 – Interpretation Act 1987, s 30(1)(c)

Civil Liability Act 2002 Civil Liability Amendment (Offender Damages) Act 2004 Crimes (Administration of Sentences) Act 1999 LEGISLATION CITED: Interpretation Act 1987 WorkCover Guides Workers Compensation Act 1987 Workers Compensation Legislation Further Amendment Act 2001 Workplace Injury Management and Workers Compensation Act 1998