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Divjakoski v Boral Window Systems

Divjakoski v Boral Window Systems

Case [2011] WASCA 134 23 June 2011

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DIVJAKOSKI -v- BORAL WINDOW SYSTEMS [2011] WASCA 134

CORAM: BUSS JA
NEWNES JA
MURPHY JA

HEARD: 10 MARCH 2011

DELIVERED : 23 JUNE 2011

FILE NO/S: CACV 50 of 2010

BETWEEN: DRAGAN DIVJAKOSKI
Appellant
AND
BORAL WINDOW SYSTEMS
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FENBURY DCJ
Citation  :DIVJAKOSKI -v- BORAL WINDOW SYSTEMS [2010] WADC 60
File No  :CIV 961 of 2003

Catchwords:

Negligence - Appellant claimed damages for injury at work - Adverse findings as to appellant's credibility by trial judge - Finding that appellant failed to prove negligence by respondent - Whether trial judge erred in making adverse findings on credibility - Whether trial judge should have found negligence by respondent - Relevant principles - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A Gunasekera
Respondent: Mr G R Hancy

Solicitors:

Appellant: Workers Compensation Legal Services
Respondent: DLA Piper Australia

Case(s) referred to in judgment(s):

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Divjakoski v Boral Window Systems [2010] WADC 60
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

BUSS JA: I agree with Newnes JA.
NEWNES JA: This is an appeal against a decision of Fenbury DCJ in the District Court dismissing the appellant's claim for damages for personal injury: Divjakoski v Boral Window Systems [2010] WADC 60.
The appellant alleged that he was injured at work late on the evening of 2 March 2000, towards the end of his shift, when he slipped and fell on a wet floor. He claimed that he sustained injuries to his left shoulder and right arm which have left him with substantial residual disabilities, resulting in lost income and a substantial reduction in his future earning capacity.
The primary judge dismissed the appellant's claim, concluding that the appellant had failed to prove that the respondent was negligent. In addition, his Honour did not accept that the appellant had the incapacity he claimed.
The appellant appeals against the dismissal of his claim, contending that his Honour erred in making findings on credibility which were adverse to the appellant and in finding that the appellant had not established that…

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 Divjakoski v Boral Window Systems

Details

AGLC: Divjakoski v Boral Window Systems [2011] WASCA 134
Case: [2011] WASCA 134
Decision Date: 23 JUNE 2011

CaseChat Overview and Summary

Divjakoski v Boral Window Systems is a case involving a worker's claim for damages due to injuries sustained in the workplace. The appellant, Divjakoski, sought compensation from the respondent, Boral Window Systems, for injuries suffered during employment. The trial judge found against the appellant, concluding that Divjakoski failed to prove the respondent's negligence. The appellant contested these findings, arguing that the trial judge made erroneous credibility assessments and should have found the respondent negligent.

The primary legal issues in this case revolved around the trial judge's assessment of Divjakoski's credibility and whether these findings warranted a conclusion that the respondent was not negligent. The appellant's case hinged on establishing that the injuries were a result of the respondent's failure to provide a safe working environment. The court had to consider the principles governing the assessment of credibility in personal injury cases and determine if the trial judge's findings were justifiable based on the evidence presented.

The court found that the trial judge's adverse findings on Divjakoski's credibility were well-founded, based on inconsistencies in his testimony and the overall evidence presented. The court held that these credibility assessments were critical to the trial judge's ultimate finding that the appellant failed to prove negligence. The decision underscored the importance of consistent and reliable testimony in personal injury claims and upheld the trial judge's conclusions. Consequently, the court dismissed the appeal, affirming that the trial judge's findings were correct and that the respondent was not liable for negligence.

The final orders of the court upheld the trial judge's decision, dismissing the appellant's claim for damages against the respondent. The court found no error in the trial judge's assessment of the appellant's credibility and concluded that the respondent was not negligent. This decision reinforces the principle that personal injury claims must be substantiated with credible evidence to succeed.

Orders