Harkins v Rexco & Adelaide Brighton Cement No. DCCIV-93-1234 Judgment No. D3582

[1997] SADC 3582

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons of His Honour Judge Lunn

Hearing

04/03/97 to 07/03/97, 10/03/97 to 14/03/97, 17/03/97 to 20/03/97, 27/06/97.

Catchwords

DAMAGESPersonal injury - shoulder - lateral rotator cuff impingement in right shoulder - 39 year old, male, labourer - similar injury in left shoulder resulting from favouring right shoulder - depression and psychiatric symptoms - likely to have developed similar conditions in 5-10 years in any event - economic loss $155,000 past, $110,000 future, non economic loss $45,000 past, $35,000 future, special damages $183,282 past, $30,000 future, gratuitous services $700 - total assessment before reduction $567,582.EVIDENCE Legal professional privilege - statement taken by investigator from WorkCover from witness to accident - sole purpose to use in legal proceedings - held privileged - no waiver in circumstances by disclosure of statement by WorkCover to plaintiff.EVIDENCE Statement of witness who was in Queensland admitted under s34c of the Evidence Act on grounds of undue delay and expense in bringing the witness to Adelaide.NEGLIGENCE Industrial accident - plaintiff required by operator of cement plant to lower numerous 25kg buckets of cement dust from a roof and to empty them into a waste bin at or approaching shoulder height - mechanical aids available but not supplied - injury to right shoulder - operator negligent and no contributory negligence - subsequent similar injury to left shoulder as a result of favouring right shoulder - consequence of previous breach of duty - contributory negligence of 20% for damage to left shoulder for plaintiff failing to report previously injury properly. Pyne v Wilkenfeld 26 SASR 441, applied. PRACTICE AND PROCEDURE Subpoena - service interstate under s30Service and Execution of Process Act 1992 - service on day before trial held ineffectual as no condition fixed by Court for minimum time for service before trial and leave given held to be meaningless.

Representation

Plaintiff WALTER HARKINS:
Counsel: MR A POSSINGHAM - Solicitors: MOLONEY &; PARTNERS

Defendant ADELAIDE BRIGHTON CEMENT LTD:
Counsel: MR O DOWNS - Solicitors: LAWSON DOWNS

DCCIV-93-1234

Judgment No. D3582

27 June 1997

(Civil)

HARKINS v REXCO PTY LTD & ADELAIDE BRIGHTON CEMENT LTD

Civil

Judge Lunn

Introduction

In 1993 the plaintiff sued Rexco Pty Ltd ("Rexco") and Adelaide Brighton Cement Ltd ("ABC") for damages for injuries which he allegedly suffered on 17 and 30 October 1990 while employed by Rexco and working at the premises of ABC. On 20 December 1994 the plaintiff discontinued his action against Rexco. However, prior to that date ABC had issued contribution proceedings against Rexco, which are still on foot, and which are being treated as third party proceedings in the action.I have not seen the contribution notice.Prior to the trial before me a Master had ordered that the issues between the plaintiff and ABC be determined before the issues between the defendants.Rexco took no part in the trial before me, and thus it is not bound by my findings.I have ignored the potentially difficult questions of whether Rexco owed any concurrent or additional duties to…