Cleere v Matic Service Pty Ltd

CITATION:	Cleere v Matic Service Pty Ltd [2004] NSWCA 453
HEARING DATE(S):	17/11/04
JUDGMENT DATE:	10 December 2004
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 2; Barrett J at 3
DECISION:	Appeal allowed only to the extent of re-assessment of damages for economic loss. Short minutes to be brought in.
CATCHWORDS:	CONTRIBUTORY NEGLIGENCE - whether worker guilty of contributory negligence in relation to workplace injury - whether apportionment appropriate - DAMAGES - damages for non-economic loss - comparison with a most extreme case - damages for past economic loss - effect on assessment of damages for past economic loss of finding that plaintiff took all reasonable steps to mitigate damages - damages for future economic loss - determination of weekly rate appropriate to reflect residual earning capacity
CASES CITED:	Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Dare v Pulham (1982) 148 CLR 158 Dell v Dalton (1991) 23 NSWLR 528 FAI Allianz Insurance Ltd v Lang [2004] NSWCA 413 Fox v Wood (1981) 148 CLR 438 Ghunaim v Bart [2004] NSWCA 28 Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Mousa v Marsh [2001] NSWCA 317 Owners of Strata Plan 156 v Gray [2004] NSWCA 304 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Protectex Chemical Industries Pty Ltd v Morkaya (unreported, NSWCA, 17 May 1996) Re Poyser and Mills' Arbitration [1964] 2 QB 467 Webster v State of New South Wales (unreported, NSWCA, 23 July 1999).
PARTIES :	Michael Cleere - Appellant Matic Service Pty Limited - Respondent
FILE NUMBER(S):	CA 41102/2003
COUNSEL:	Mr A.J. Lidden/Ms E. Welsh - Appellant Mr D.G. Nock SC - Respondent
SOLICITORS:	Bryden's Law Office - Appellant Vandervords - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	12269/01
LOWER COURT JUDICIAL OFFICER :	Sorby DCJ

CA No 41102 of 2003

BEAZLEY JA
HODGSON JA
BARRETT J

FRIDAY, 10 DECEMBER 2004

MICHAEL CLEERE v MATIC SERVICE PTY LIMITED

Judgment

1 BEAZLEY JA: I agree with Barrett J.

2 HODGSON JA: I agree with Barrett J.

3 BARRETT J: The appellant appeals from a decision of His Honour Judge Sorby exercising the civil jurisdiction of the District Court in which damages of $196,191 were awarded against his employer, the present respondent, in respect of a workplace injury.

4 The proceedings arose out of an incident on 23 February 2000 in which the appellant suffered injury to his back when he and his assistant, Mr Richardson, together lifted a wheelbarrow filled with concrete rubble and tipped the contents into a skip. The primary judge found the respondent employer guilty of negligence. His Honour also found that the appellant was guilty of contributory negligence which he assessed at 25%. The finding of contributory negligence is challenged on appeal.

5 The trial judge assessed damages by reference to three components. He awarded $64,895 for non-economic loss, taking the view that the appellant’s situation represented 27% of a most…