Njegovan v Nayshon Pty Ltd - [2014] WADC 111

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NJEGOVAN -v- NAYSHON PTY LTD [2014] WADC 111

CORAM: SCHOOMBEE DCJ

HEARD: 3-10 JUNE 2014

DELIVERED : 27 AUGUST 2014

FILE NO/S: CIV 3002 of 2010

BETWEEN: ANTONY NJEGOVAN
Plaintiff
AND
NAYSHON PTY LTD
Defendant

Catchwords:

Common law claim by manager of tavern against employer for damages for personal injuries - Employee suffered laceration to forehead when pushed against fire hose cabinet by unruly patron - Whether employee also suffered closed brain injury - Employee developed post-traumatic stress disorder after the assault - Employee already suffering from post-traumatic stress disorder after an earlier motor vehicle accident - Whether current degree of permanent whole of person impairment at least 15% - Whether employee suffered from pre-existing impairment arising from the motor vehicle accident - Whether the pre-existing impairment referred to in par 13.11 of the WorkCover WA Guides is permanent impairment - Whether a percentage relating to pre-existing impairment should be deducted from the current percentage of whole of person impairment - Whether an assessment of impairment arising from emotional and behavioural disturbances under par 7.10 of the WorkCover WA Guides cannot be undertaken unless significant post-traumatic amnesia or significant intracranial pathology on CT scan or MRI is present

Legislation:

WorkCover WA Guides pars 3.54, 7.10, 13.11
Workers' Compensation and Injury Management Act 1981 s 93K(4)(d), s 93K(13)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr T Lampropoulos

Solicitors:

Plaintiff: Simon Walters
Defendant: Kott Gunning

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

Armitage v Tenix Defence Pty Ltd [2008] WADC 150
Barnett v Transport Accident Commission M26/2001 [2001] HCATrans 646, (14 December 2001)
BHP Billiton Ltd v Parker [2012] SASCFC 73
Bowen v Tutte (1990) Aust Torts Reports 68,079
Connelly v MMI Workers Compensation (Vic) Ltd (2003) 6 VR 555
HJ Heinz Co Australia Ltd v Kotzman [2009] VSC 311
Kschammer v R W Piper and Sons Pty Ltd [2003] WASCA 298
Lake v Transport Accident Commission [1998] 1 VR 616
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Cooke [2003] SASC 403
South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35
State of New South Wales v Moss (2000) 54 NSWLR 536
Victorian WorkCover Authority v Elsdon [2013] VSCA 235
Watts v Turpin (1999) 21 WAR 402

SCHOOMBEE DCJ: Mr Njegovan, the plaintiff, was the bar manager employed by Nayshon Pty Ltd, the defendant, at the Merriwa Tavern in the northern suburbs of Perth, Western Australia. He was then aged 24 years. Some of the regular patrons of this tavern were unruly and aggressive and some of them had associations with outlawed motorcycle gangs. Mr Njegovan and the tavern manager, Mr Marco Medici, gave evidence that physical fights between patrons was a regular occurrence.
On 25 September 2008 Mr Njegovan left his office when he heard an altercation between patrons and the bar staff at closing time. A group of…

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: [2014] WADC 111
Decision Date: 27 AUGUST 2014

CaseChat Overview and Summary

Njegovan, a manager of a tavern, brought a common law claim against his employer, Nayshon Pty Ltd, seeking damages for personal injuries. The plaintiff alleged that he was pushed against a fire hose cabinet by an unruly patron, resulting in a laceration to his forehead. He further claimed that the incident caused a closed brain injury and post-traumatic stress disorder (PTSD), exacerbated by a pre-existing PTSD from a motor vehicle accident. The employer denied liability for the injuries and argued that the plaintiff's current degree of permanent whole of person impairment was less than 15%, and that any pre-existing impairment from the motor vehicle accident should be deducted from the current percentage of whole of person impairment.

The legal issues before the court were whether the plaintiff suffered a closed brain injury from the tavern incident, whether the pre-existing impairment from the motor vehicle accident was permanent, and whether a percentage relating to pre-existing impairment should be deducted from the current percentage of whole of person impairment. Additionally, the court needed to determine whether an assessment of impairment arising from emotional and behavioural disturbances could be undertaken without significant post-traumatic amnesia or significant intracranial pathology on CT scan or MRI.

The court found that the plaintiff did not suffer a closed brain injury from the tavern incident. However, the plaintiff's current degree of permanent whole of person impairment was at least 15%, taking into account the aggravation of his pre-existing PTSD. The court held that the pre-existing impairment from the motor vehicle accident was not permanent and therefore should not be deducted from the current percentage of whole of person impairment. Finally, the court ruled that an assessment of impairment arising from emotional and behavioural disturbances could be undertaken even in the absence of significant post-traumatic amnesia or significant intracranial pathology on CT scan or MRI. The court ordered the defendant to pay the plaintiff damages for his injuries.

Orders