Savic v Salmat Targeted Services Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2009 3774

DAMJAN SAVIC
	Appellant
v
SALMAT TARGETED SERVICES PTY LTD	Respondent

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JUDGES:	NEAVE, MANDIE and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2010
DATE OF JUDGMENT:	18 November 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 303
JUDGMENT APPEALED FRON:	Savic v Salmat Targeted Services Pty Ltd (Unreported, Count Court of Victoria, Judge Robertson, 15 May 2009)

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ACCIDENT COMPENSATION – Appellant suffered a pre-existing work-related injury – Whether subsequent work-related injury was a serious injury – Whether subsequent work –related injury caused a total loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T P Tobin SC with Miss K A Galpin	Zaparas Lawyers
For the Respondent	Mr J Ruskin QC with Mr J P Gorton	Wisewould Mahoney

NEAVE JA:

1. I have had the advantage of reading in draft form the judgment of Mandie JA.  For the reasons given by him, I would allow the appeal.

MANDIE JA:

1. This is an appeal by Damjan Savic (‘the appellant’) against the decision of a judge in the County Court, on 15 May 2009, dismissing his application pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (‘the Act’) for leave to bring proceedings for the recovery of damages for both pain and suffering and loss of earning capacity in respect of an injury to his right shoulder.

Factual background

1. It is convenient to summarise the relevant factual background and the evidence before the court below as follows.

1. The appellant was born in Bosnia on 6 May 1949.  After eight years’ schooling, he helped his father in his job which was to grind wheat to meal.  In about 1970, having completed army service, the appellant worked as a painter and then in a furniture factory.

1. In 1988, the appellant emigrated to Australia, leaving his wife and three children behind in Bosnia.[1]  On 21 March 1988 he arrived in Australia and on 5 April 1988 he commenced employment with a company (‘Extruded Metals’). Extruded Metals made small metal components from ingots of various types of metal.  The ingots were heated and fed into a machine press.  The appellant’s job as a press operator involved working at the other end of the machine press.  The appellant’s work required him to engage in very rapid, repetitive and heavy duties involving constant pulling and pushing of very large weights.  For example, as the

profiles or lengths of metal, which could be as long as 30 metres, came out of the machine press, one of the appellant’s tasks was to use large pliers or tongs to pull them out of the press when they would not come through the press properly.

[1]The appellant’s wife and their two youngest children joined the appellant in Australia in 1994.

1. On or about 3 November 1995, the appellant sustained injury to his left elbow when he was pulling a heavy metal weight and he slipped and fell backwards hitting his left elbow onto the metal…