Bozic v Bartter Enterprises Pty Ltd - [2010] VSC 488

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT GEELONG

COMMON LAW DIVISION

No. 10128 of 2009

STANA BOZIC	Plaintiff
v
BARTTER ENTERPRISES PTY LTD	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	Geelong
DATE OF HEARING:	19-26, 31 August, 1 September 2010
DATE OF JUDGMENT:	28 October 2010
CASE MAY BE CITED AS:	Bozic v Bartter Enterprises Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 488

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ACCIDENT COMPENSATION – Workplace injury – Negligence – Dispute as to extent of injury – Injury to discs of the lumbar spine – No neural compromise – psychological reaction - Assessment of damages – Pecuniary loss damages – Pain and suffering damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison SC with Mr A MacNab	Petersons
For the Defendant	Mr J Tebbutt with Miss K Galpin	Wisewould Mahoney

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

Liability................................................................................................................................................ 4

The plaintiff’s evidence.................................................................................................................... 5

Drago Bozic......................................................................................................................................... 9

Surveillance and incidental observation evidence.................................................................... 10

Medical opinion relied on by the plaintiff.................................................................................. 12

Dr Waldemar Bogacki................................................................................................................ 12
Dr Kevin Threlfall....................................................................................................................... 14
Dr Michael Vagg......................................................................................................................... 18
Dr John Black............................................................................................................................... 25
Dr Gerald Mathews..................................................................................................................... 26
Mr David McClure...................................................................................................................... 27
Summary of the treating doctors’ evidence............................................................................ 28

Further specialist medical opinion relied on by the plaintiff.................................................. 29

Dr Anthony Kam......................................................................................................................... 29
Mr Brian Barrett........................................................................................................................... 31
Mr David Brownbill.................................................................................................................... 39
Mr Russell Miller........................................................................................................................ 43
Additional psychiatric opinion................................................................................................. 44

Opinion evidence relied on by the defendant........................................................................... 45

Dr Nigel Wood............................................................................................................................ 45
Mr John O’Brien........................................................................................................................... 47
Mr Clive Jones............................................................................................................................. 49
Mr Graeme Brazenor.................................................................................................................. 50
Mr Peter Battlay........................................................................................................................... 55
Professor George Mendelson.................................................................................................... 55

The extent of the plaintiff’s injury................................................................................................ 56

Conclusion......................................................................................................................................... 60

HIS HONOUR:

Introduction

The plaintiff is a 43 year old woman born on 1 September 1967 who migrated to this country from Bosnia in 1995. She came here with her husband whom she had married in 1985 and their three children who are now aged 24, 22 and 16.

After their arrival the plaintiff’s husband undertook an English course and then after about a year obtained work with the defendant (one of what was then known as the Steggles group of companies). His work involved the processing of chickens.

The plaintiff had worked as a process worker packing meats and small goods in a factory in Yugoslavia between the ages of 15 and 20. She initially looked after her children following immigration but in 2003 she also went to work at the defendant’s factory.

On 6 December 2004 at about 10 am she was working making boxes. She was required to take the boxes from a pallet on which they were packed flat and to fold them before placing them on a machine which automatically taped them. The machine jammed and failed to properly cut the tape on three boxes. She then stopped the machine and walked around it to the three boxes in question in order to manually cut the tape. As she went back to her working station a wooden pallet which had been left upright next to a stack of other…

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: [2010] VSC 488
Decision Date: 28 October 2010

CaseChat Overview and Summary

The case of Bozic v Bartter Enterprises Pty Ltd involved a dispute over the extent of a workplace injury and the subsequent compensation to be awarded. The matter was heard in the Supreme Court of Victoria, where the plaintiff, Bozic, sought damages from Bartter Enterprises Pty Ltd for injuries sustained during his employment. The primary issues revolved around the nature and extent of the injury, the level of negligence on the part of the employer, and the appropriate assessment of damages, both pecuniary and non-pecuniary.

The court needed to determine the extent of the plaintiff's lumbar spine injury and whether it was caused by the defendant's negligence. The plaintiff alleged that the injury led to significant pain and suffering, necessitating a detailed examination of medical evidence. Additionally, the court had to assess the psychological impact of the injury and how it might have affected the plaintiff's capacity to work. The crux of the matter lay in the evaluation of the plaintiff's claims against the defendant's arguments that the injury was either not as severe as claimed or not work-related at all.

In delivering its judgment, the court meticulously reviewed the medical reports and testimonies. It was established that while the plaintiff had indeed suffered an injury to the discs in his lumbar spine, there was no neural compromise. The court acknowledged the plaintiff's experience of pain and suffering but found that his psychological reaction to the injury was not as severe as portrayed. The court awarded damages for the pecuniary loss, considering the plaintiff's reduced earning capacity due to the injury. It also granted compensation for pain and suffering, albeit at a level that reflected the court's assessment of the plaintiff's condition and the impact on his life.

The court's final orders included a specific sum for pecuniary loss and a separate amount for pain and suffering, reflecting a balanced consideration of all evidence presented. The court ruled in favour of the plaintiff, awarding compensation, but limited the extent of damages in recognition of the mitigating factors identified during the trial.

Orders