Spasic v T R Savage & Son Pty Ltd

[2005] NSWCA 53

CITATION:	Spasic v T R Savage & Son Pty Ltd [2005] NSWCA 53
HEARING DATE(S):	25 February 2005
JUDGMENT DATE:	25 February 2005
JUDGMENT OF:	Handley JA at 1; Ipp JA at 28; Tobias JA at 29
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	DAMAGES - no question of principle
LEGISLATION CITED:	Workers Compensation Act 1987
PARTIES:	Dragan Spasic (Appellant) T R Savage & Son Pty Ltd (Respondent)
FILE NUMBER(S):	CA 40398/04
COUNSEL:	R Hanrahan (Appellant) C Leahy (Respondent)
SOLICITORS:	Athena Touriki (Appellant) Abbott Tout (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3264/00
LOWER COURT JUDICIAL OFFICER:	Andrews ADCJ

CA 40398/04

HANDLEY JA
IPP JA
TOBIAS JA

25 FEBRUARY 2005

DRAGAN SPASIC v T R SAVAGE & SON PTY LTD

CATCHWORDS

DAMAGES – no question of principle

FACTS

The employee sued his employer in the District Court for a back injury suffered in a fall at work and for additional injuries to his back during the six months after the accident due to the nature of his work. The District Court judge rejected the second claim and found that the plaintiff had not met the thresholds in s 151G(3) and s 151H(2A) of the Workers Compensation Act for the award of non-economic and economic loss. HELD: The judge’s assessment of the plaintiff’s non-economic loss within the 10 to 15 per cent range could not be disturbed. There was no reason for concluding that the District Court judge failed to properly direct himself in relation to assessing the foreseeable consequences of the tort and error had not been established.

ORDERS

Appeal dismissed with costs.

CA 40398/04

HANDLEY JA
IPP JA
TOBIAS JA

25 FEBRUARY 2005

DRAGAN SPASIC v T R SAVAGE & SON PTY LTD

Judgment

1 HANDLEY JA: This is an appeal from the judgment of Andrews ADCJ given on 31 March 2003.

2 The appellant sues his former employer for injuries sustained in an accident at work on 5 May 1997 and further injuries to his back between that date and 30 October 1997 as a result of his work on a Zayer machine which, according to the appellant, involved heavy lifting, twisting and bending.

3 The trial judge accepted the appellant’s claim to have suffered an injury on 5 May as a result of a fall of about three metres down a wooden staircase made slippery by oil.

4 The judge rejected the second claim and that has not been pursued in this appeal.

5 The judge considered the issues of damages and held that the appropriate award for the appellant’s non-economic loss would not exceed the 17.6 per cent threshold under s 151G(4) of the Workers Compensation Act 1987, as a percentage of a most extreme case as defined in s 151G(3).

6 He also found that the appellant was not entitled to an award for economic loss because he had not received a serious injury as defined in s 151H(2A) of the Act.

7 Both claims, therefore, failed and the appellant’s damages were limited to his out of pocket expenses.

8 The appeal challenges the judge’s findings that the statutory thresholds for awards of non-economic loss and economic loss were not met and his consequent refusal to award damages under these heads.

9 The appellant’s case faces many difficulties. He lost no time from work between 5 May and 30 October 1997. He had been injured in a motor vehicle accident in 1987 and brought an action which was heard in 1992. The appellant’s evidence in that case was in stark contrast with his evidence in the current proceedings. The plaintiff gave evidence in 1992 of suffering constant low back pain, neck pain and dizziness, increased pain when operating machinery at work and injuries to his right shoulder and knee.

10 The appellant’s evidence in the present proceedings was that he had not suffered any neck injury as a result of the 1987 motor vehicle accident and that his low back problems disappeared one month after the accident and though he had further problems with his back they had gone away by 1990.

11 The judge found that the appellant had given inaccurate histories to the doctors who gave evidence in report form. He said:

“the plaintiff has exaggerated his claim with a view to maximising his damages. I cannot accept him as a reliable witness and his inaccurate pre-accident medical history has resulted in medical views based on insufficient and inadequate background information ...”

12 The appellant had been receiving medical treatment for his back for some years prior to the fall of May 1997. He first saw Dr Watson, a neurologist, and Dr Ditton, a pain management specialist, in 1995.

13 In 1996 he saw Dr McDowell, a neurosurgeon, Dr Rodger, a rehabilitation specialist, and for his dizziness Dr Clifford, an ENT specialist.

14 In 1997, before his fall, he had seen Dr Barnes for respiratory complaints and Dr Laks, a specialist physician.

15 The judge concluded by saying:

“I am satisfied that the fall on the stairs did cause minor aggravation to pre-existing symptoms but based on the medical opinions outlined and on all of the medical evidence I could not assess the plaintiff’s injuries attributable to the fall on 5 May 1997 any higher than in a range of from 10 to 15 per cent of a worst case.”

16 Moving to the question of economic loss, he found that the plaintiff had not satisfied the threshold for an award of economic loss.

17 Mr Hanrahan submitted that the judge overlooked the effect of the appellant’s normal work after 5 May 1997 which, in his submission, aggravated the consequences of the fall on the stairs and caused additional serious damage to his back. In other words, in substance, the submission was that the plaintiff had suffered additional damage through his ordinary work because of the weakened state of his back caused by the fall.

18 The judge understood that he had to separately assess the damages in respect of both causes of action and his task in respect of the cause of action based on the fall was not changed by the verdict for the defendant in relation to the other cause of action.

19 The judge’s task was to separately assess the damages flowing from the fall and to decide whether the statutory thresholds were met in relation to that cause of action. As I said his task in relation to the tort was not affected by his decision that the second cause of action was not established.

20 Mr Hanrahan submitted that the trial judge failed to direct himself that damages were available not only for the immediate consequences of the fall but for its further foreseeable consequences due to the fact that in his weakened condition his ordinary work would cause him further injury.

21 As a matter of legal principle this is undoubtedly correct and the judge was bound to assess damages for all the foreseeable consequences of the tort. The difficulty that Mr Hanrahan faces is that there is no basis for concluding that the judge failed to correctly direct himself to this effect or that his assessment itself demonstrates error.

22 In an attempt to establish error Mr Hanrahan pointed to a heading in the judgment on p 11, and the statement on p 15 that the loss fell within 10 to 15 per cent of a most extreme case.

23 In my judgment these matters do not establish that the judge failed to direct himself according to law. The range found by the judge of 10 to 15 per cent was consistent with his Honour having correctly understood his task in assessing the non-economic loss.

24 Mr Hanrahan also relied upon the judge’s failure to give adequate reasons for his finding that the case fell between 10 and 15 per cent. There is no substance in this submission.

25 The judge made findings as to the history of the appellant’s back pathology and complaints between the motor vehicle accident and the fall which are not challenged.

26 He then expressly accepted the evidence of Dr Pillenger and Dr Johnson in passages which he quoted immediately before he arrived at his decision that the case fell within a range of 10 to 15 per cent.

27 In these circumstances in my judgment the appeal fails and should be dismissed with costs.

28 IPP JA: I agree.

29 TOBIAS JA: I agree.

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