Knauer v Transfield Pty Limited - [2005] NSWSC 176

CITATION:
Knauer v Transfield Pty Limited [2005] NSWSC 176

HEARING DATE(S): 21-25 February 2005

JUDGMENT DATE :

11 March 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Studdert J

DECISION:
Judgment for the plaintiff in the sum of $1,351,955.50. The defendant is to pay the plaintiff's costs.

LEGISLATION CITED:
Workers' Compensation Act, s 151I

CASES CITED:
Van Gervan v Fenton (1991-92) 175 CLR 327

PARTIES:
David Justin Knauer (Plaintiff)
Transfield Pty Limited (Defendant)

FILE NUMBER(S):
SC 20453/02

COUNSEL:
P.H. Greenwood SC/D. O'Dowd (Plaintiff)
C. Bridge SC/A. Naylor (Defendant)

SOLICITORS:
Gillis Delaney Brown (Plaintiff)
Hicksons Lawyers (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Friday 11 March 2005

20453/02 DAVID JUSTIN KNAUER v TRANSFIELD PTY LIMITED
JUDGMENT

1 HIS HONOUR: The plaintiff, David Knauer, claims damages from the defendant, Transfield Pty Limited, after being injured in the course of his employment with the defendant on 26 November 1999. The defendant joined North Sydney Area Health Service as a cross defendant, but when the hearing of this cause commenced Mr Bridge of Senior Counsel, appearing for the defendant, informed the Court that the matter was settled as between the defendant and the cross defendant. Liability as between the plaintiff and the defendant was not contested, and the matter proceeded for the assessment of damages only.

2 The nature of the claim is such as to demand very close attention to the medical evidence in this case. However, I propose at the outset to record in summary form details of the plaintiff’s background, the circumstances of the accident, and then the course of the plaintiff’s treatment, and post accident history.

The plaintiff’s background

3 The plaintiff was born on 28 January 1970, so that he was twenty-nine years of age when he was injured and he is presently thirty-five years of age. He came from a stable family background, but left school in year nine at the age of fourteen. Having done so, he worked as an offsider to an electrician and then he had a position with an employer engaged in decking out vans. He worked thereafter as a boner and slicer at the Riverstone Meat Works, before working for Grace Removals for some five or six years. Whilst so employed he had a second position, working part-time as a stock taker for City Ford.

4 The plaintiff commenced to work with an employer described in the evidence as AC Tipping in about 1992. He underwent some training with that employer and was working as a subterranean maintenance engineer. The position involved pipelining, relining sewer mains, cleaning out pipes and associated works. In 1997 the plaintiff started working for the defendant on the construction of the airport link project. He worked underground using a jackhammer and was engaged in roof bolting, railway line laying and other necessary underground works. He was classified as a tunneller. In April 1998 the plaintiff, as a member of the hard rock tunnelling team, received a letter of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWSC 176
Decision Date: 11 March 2005

CaseChat Overview and Summary

Knauer v Transfield Pty Limited was an action for damages for personal injury, arising out of a workplace accident. The plaintiff, David Knauer, was a tunneller working on a construction project for the defendant, Transfield Pty Limited. While he was working underground, a metallic fragment entered his right arm, and travelled to his heart. The plaintiff sued for damages and the defendant admitted liability. The matter proceeded to an assessment of damages. The plaintiff claimed that the fragment in his heart caused him to suffer from anxiety attacks, depression and post traumatic stress disorder. His wife testified that the plaintiff had attempted to return to work on a number of occasions but had been unable to continue in employment. The plaintiff had been assessed as suffering from a psychiatric disorder. The defendant submitted that the plaintiff would recover from his psychiatric condition once the litigation was behind him. However, the court found that the plaintiff would continue to suffer from his psychiatric condition and would remain incapacitated for work indefinitely in the future. The court awarded damages in the sum of $1,351,955.50.

Orders