State Rail Authority of NSW v Shimon - [2000] NSWCA 382

NEW SOUTH WALES COURT OF APPEAL

CITATION: STATE RAIL AUTHORITY OF NSW v SHIMON [2000] NSWCA 382

FILE NUMBER(S):
40768/99

HEARING DATE(S): 1 December 2000

JUDGMENT DATE: 01/12/2000

PARTIES:
STATE RAIL AUTHORITY OF NSW v WILLIAM SLEWA SHIMON

JUDGMENT OF: Mason P Priestley JA Heydon JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC1430/99

LOWER COURT JUDICIAL OFFICER: Hogan A/DCJ

COUNSEL:
Appellant: J Guihot
Respondent: K Ryan

SOLICITORS:
Appellant: Creagh & Creagh
Respondent: Ron Kramer & Associates

CATCHWORDS:
Damages - personal injury - credibility finding. ND

LEGISLATION CITED:

DECISION:
Dismissed with costs.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40768/99
DC 1430/99
MASON P
PRIESTLEY JA
HEYDON JA
Friday 1 December 2000

STATE RAIL AUTHORITY OF NSW v William Slewa SHIMON
JUDGMENT

MASON P: Following a trial in the District Court the respondent was awarded a verdict of $773, 634 in relation to a work injury suffered on 20 November 1986.
The respondent was descending from the cabin of a dumper truck when he slipped and fell heavily, hitting his back on the ground. Negligence was found against the appellant, his employer and it is no longer in issue.
The trial took place before Hogan ADCJ in late 1999. Only two witnesses were called, the respondent and a private inquiry agent who filmed him performing various activities. Two bundles of medical reports were tendered with none of the doctors being required to attend for cross-examination.
No explanation appears for the delay in the prosecution of the proceedings that had been commenced in the District Court in 1987. There were proceedings in the Compensation Court in 1989. I mention these facts in the context of recording that the appellant does not suggest forensic disadvantage stemming from the delay in prosecuting the District Court action.
In a reserved judgment, the learned trial judge found negligence. Then, after a review of the evidence, he concluded in the following terms:
In summary, as a result of the defendant’s negligence, on 20 November 1986 the plaintiff suffered a fall which injured his back. No bones were broken. The fall was sufficiently severe to require a stay of about 12 days in hospital. Over a period of about 18 months he made a number of attempts to return to work, which were not successful because of pain. He has not worked since mid-1988 and it is obvious that he will never be fit for work in the future.
Although there is spinal pathology in the lower back and to a lesser extent in the cervical area, there is no obvious nerve root involvement. There is no treatment that can improve his condition. There has been significant emotional overlay over the years.
He is not in constant agony. The level of pain fluctuates, becoming worse after any prolonged or strenuous activity. Medication relieves the pain to some extent. Sometimes the pain is very bad. Sometimes there is no pain at all, but periods without pain probably do not last long.

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.

Continue reading State Rail Authority of NSW v Shimon

Details

AGLC: State Rail Authority of NSW v Shimon [2000] NSWCA 382
Case: [2000] NSWCA 382
Decision Date: 1 December 2000

CaseChat Overview and Summary

The State Rail Authority of New South Wales (SRA) appealed to the Supreme Court of New South Wales, Court of Appeal, against a judgment of the District Court awarding damages to Mr. Shimon for personal injury. Mr. Shimon had sued the SRA for negligence, alleging that he had suffered injury as a result of the SRA's breach of duty of care.

The primary legal issue before the Court of Appeal was whether the District Court judge had erred in making a finding of credibility against the SRA's witnesses, particularly in relation to the evidence concerning the circumstances of Mr. Shimon's injury. The appeal also concerned whether the District Court judge had correctly assessed the quantum of damages awarded.

The Court of Appeal reviewed the evidence presented at trial and the reasons given by the District Court judge for his findings of fact and credibility. The Court found no error in the District Court judge's assessment of credibility, noting that such findings are largely within the province of the trial judge who has had the opportunity to observe the witnesses. The Court also found no error in the assessment of damages. Accordingly, the appeal was dismissed.

Orders

Orders of the court

Dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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