Jovanovic v Southorn - [1987] TASSC 17

Serial No B17/1987
List "B"

COURT: SUPREME COURT OF TASMANIA

CITATION: Abbaci v Richardsons Meat Industries Ltd [1987] TASSC 17; B17/1987

PARTIES:  ABBACI, L'Arbi
  v
  RICHARDSONS MEAT INDUSTRIES

FILE NO/S:  WC 411/1984
DELIVERED ON:  24 April 1987
JUDGMENT OF:  Underwood J

Judgment Number: B17/1987
Number of paragraphs: 44

Serial No B17/1987
List "B"
File No WC 411/1984

L'ARBI ABBACI v RICHARDSONS MEAT INDUSTRIES LTD

REASONS FOR JUDGMENT UNDERWOOD J

24 April 1987

The plaintiff's claim is for compensation in accordance with the provisions of the Workers Compensation Act 1927.

Section 5(1) provides:

"If in any employment a worker suffers personal injury by accident … arising out of and in the course of the employment, his employer shall, subject to this Act, be liable to pay compensation in accordance with the provisions of Schedule I."

Liability to pay "compensation in accordance with the provisions of Schedule I" arises if the plaintiff establishes, on the balance of probabilities that:

1In his employment with the defendant he suffered personal injury by accident, and
2such personal injury arose out of and in the course of his employment.

In addition, proof of those matters will create a liability to pay "the reasonable costs of any medical, hospital, … services reasonably incurred … by reason of the injury" (s8A).

The plaintiff was born in Algeria on 10 October 1948. There, he worked as a slaughterman for about 4 years.

In 1966 he left Algeria and went to live in France where he became a qualified bricklayer. In 1970 he emigrated to Australia. In Victoria and South Australia he was employed in a number of unskilled or semi–skilled labouring jobs.

In 1974 the plaintiff came to Tasmania. Initially, he worked for Cadbury–Schweppes Ltd and then for Boxalls. In about 1979 he resumed his former occupation of a slaughterman. In 1982 the plaintiff commenced employment with the defendant as a Muslim slaughterman and remained so employed until the 17 February, 1984 when he was formally discharged.

The plaintiff claims that on the 20 May 1983, he suffered personal injury by accident whilst working as a Muslim slaughterman for the defendant at its Somerset abattoir. Section 5(3A)(a) provides that an injury by accident is deemed to arise out of and in the course of the employment if the accidental injury occurs, "while the worker on any working day on which he has attended at his place of employment pursuant to his contract of employment is present at his place of employment". The plaintiff also claims that in June, October and December 1983 he sustained further injuries by accident whilst working as a Muslim slaughterman for the defendant at its abattoir near Hobart.

Although he has lived in Australia for more than 15 years, the plaintiff's command of the English language is poor. In assessing the weight to be given to his evidence I have taken into account his limited expression in English. Notwithstanding this limitation, I formed the clear impression that the plaintiff is far from unintelligent and 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 Jovanovic v Southorn

Details

AGLC: Jovanovic v Southorn [1987] TASSC 17
Case: [1987] TASSC 17
Decision Date: 13 February 1987

CaseChat Overview and Summary

L'Arbi Abbaci commenced proceedings against Richardsons Meat Industries Ltd, seeking compensation under the Workers Compensation Act 1927 for injuries he claimed to have sustained while working as a Muslim slaughterman for the defendant at its Somerset abattoir. The plaintiff alleged that he suffered personal injury by accident while working on 20 May 1983 and sustained further injuries in June, October, and December 1983. The primary legal issues the court had to decide were whether the plaintiff had established that he suffered personal injury by accident and whether such injuries arose out of and in the course of his employment. The court had to determine if the plaintiff's injuries were a result of the stress involved in his job and whether he was able to continue working despite the injuries.

The court found that the plaintiff had established that he suffered an injury by accident in May 1983 and that such injury arose out of and in the course of his employment. The court accepted that the plaintiff's pre-existing condition made him vulnerable to painful injury, and the stress involved in his job resulted in an injury by accident. However, the court found that the plaintiff's physical capacity for working was not reduced to the point where he was disabled from working by 30 December 1983. The court held that the plaintiff was entitled to receive weekly payments for partial incapacity for work due to the injuries he sustained at work. However, the court held that the plaintiff's claim for payment of weekly compensation failed because his failure to work since January 1984 was due to the dispute with the Tasmanian Islamic Council, the consequential loss of registration as a Muslim slaughterman, and his persistent sense of grievance.

The court dismissed the plaintiff's claim for compensation and awarded costs to the defendant.

Orders