El-Tarraf v Franklins Limited

The case of *El-Tarraf v Franklins Limited* concerned an appeal from a decision of a primary judge who dismissed the appellant's claim for damages arising from an accident. The appellant alleged he suffered various injuries, including pain in his knee, lower back, and neck, as a consequence of the incident. The primary judge found that the respondent had breached its duty of care, but ultimately dismissed the appellant's claim for damages.

The central legal issues before the primary judge were whether the appellant had proven, on the balance of probabilities, that his claimed disabilities, beyond an injury to his right leg, were causally related to the accident. Furthermore, the court had to determine if the appellant had established a "serious injury" as defined by the *Workers Compensation Act 1987* (NSW), which was a prerequisite for recovering damages for economic loss, and whether the assessed non-economic loss met the threshold for recovery.

The primary judge's reasoning focused on the medical evidence. While acknowledging the appellant's subjective complaints, the judge found that the majority of medical practitioners, including the only doctor to give oral evidence, Dr. Carr, did not attribute the appellant's back, neck, or other complaints to the accident. Dr. Carr's evidence, which the primary judge found persuasive and entirely acceptable, assessed a 5% permanent loss of function in the appellant's right leg and excluded other complaints as accident-related. Consequently, the primary judge concluded that the appellant had failed to establish a serious injury or a claim for non-economic loss exceeding the statutory threshold. The judge also found the claim for domestic assistance unproven, relying on Dr. Carr's views.

As a result of these findings, the primary judge entered a verdict for the defendant, dismissing the appellant's claim for damages. The primary judge deferred making any order as to costs pending the delivery of the reasons for judgment.