Capral Aluminium Ltd v Komljenovic

[2001] NSWCA 173

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Capral Aluminium Ltd v Komljenovic [2001]  NSWCA 173

FILE NUMBER(S):
40558/00

HEARING DATE(S):            29/5/01

JUDGMENT DATE: 29/05/2001

PARTIES:
Capral Aluminium Limited
v
Jovanka Komljenovic

JUDGMENT OF:      Meagher JA Powell JA Rolfe J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        31305/97

LOWER COURT JUDICIAL OFFICER:     Bagnall DCJ

COUNSEL:
A: J D Hislop QC/ G Parker
R: F Curran

SOLICITORS:
A: Pricewaterhouse Coopers Legal
R: Gerard Malouf & Partners

CATCHWORDS:
Workers Compensation - where trial judge accepted some parts of plaintiff's evidence and rejected others - no obligation on trial judge to say why some parts of evidence believed and others not - appeal dismissed.

LEGISLATION CITED:

DECISION:
Appeal Dismissed With Costs

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40558/00

MEAGHER JA
  POWELL JA
  ROLFE AJA

Tuesday, 29 May 2001

CAPRAL ALUMINIUM LIMITED v JOVANKA KOMLJENOVIC

JUDGMENT

1. MEAGHER JA: This is an appeal by an employer, Capral Aluminium Limited, against an award made by Mr Acting Justice Bagnall in favour of the worker, Mrs Jovanka Komljenovic.  She alleges that when working for her employers between August 1995 to 24 November 1998 she suffered various injuries and/or diseases to her back, neck, both hands, both elbows, both shoulders, both legs, and her left ankle.  She sought weekly benefits in respect of those injuries together with lump sums under sections 66 and 67.  She also alleges on 27 August 1997 she sustained the specific injury as a result of work she was doing on a shaft cutter. 

2. She worked on various machines in the course of her employment with the employer.  The work involved the use of both her arms, and also involved effort and movement of the upper body, including the neck.  The work was fast and repetitive.  His Honour made an award in her favour, the details of which are of no present relevance.

3. The fact that such an award was made must signify a general acceptance by his Honour of her testimony.  Implicit in the grounds of appeal is an acceptance by the appellant of the fact that there was evidence which would have supported her complaints.

4. However, his Honour did not believe everything she said.  He disbelieved her allegations of a frank injury on 27 August 1997.  Nor did he believe her when she stated that she sought relief from night shift because of problems with her arms, when in fact she sought it in order to quieten the pain caused by her cerebral shunt.

5. Mr Hislop QC appeared for the employer, the appellant, and Mr Curran appeared for the respondent worker.  The employer’s submissions, which I must frankly confess I found very difficult to follow, was that his Honour erred in failing to explain why he believed the worker on most matters although he disbelieved her on two matters.  I do not accept these submissions.  If a judge believes a witness, he is not obliged to say why he has done so.  If as here, a judge believes a witness on all matters except two isolated matters, again he or she is not obliged to do so. 

6. In my view the appeal should be dismissed with costs.

7. POWELL JA:  I agree.

8. ROLFE AJA:  I agree.

9. MEAGHER JA:  The order of the Court therefore is the appeal is dismissed with costs.

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LAST UPDATED:            14/06/2001