OSTOJIC v SCHAFFER CORPORATION LTD AND ANOR [1995] NSWCA 344

OSTOJIC vy SCHAFFER CORPORATION LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and MEAGHER JJA 10 July 1995, 1 September 1995.

[1995] NSWCA 344

Applicant claiming total incapacity — Whether finding of partial incapacity correct — Whether consideration given to relevant evidence Appeal from Compensation Court — Applicant claiming total incapacity — Held: partial incapacity — Whether finding correct — Whether consideration given to relevant evidence.

Mahoney JA On 18 May 1994 the applicant Mr Branko Ostojic ("the applicant") filed, by leave a Second Application for Determination of compensation in the Compensation Court of New South Wales. On 19 August 1994, after a hearing of his claim, her Honour O'Toole J made an award for the applicant in the sum of $150 per week for the period between 10 March and 31 July 1994. Otherwise she refused his application. The applicant has appealed to this Court against her Honour's judgment.

The applicant was, at the relevant times, an employee first of Schaffer Corporation Limited ("Schaffer") and then of Boral Besser Masonry Limited ("Boral"). Boral had "taken over" Schaffer on or about 1 July 1988 and the applicant was thereafter employed by Boral. Nothing has been said to turn upon this change.

In the present application the applicant claimed that he suffered injury on three occasions: on 19 October 1984 when lifting a drum; on 23 September 1985 when pushing a trolley. and on 29 March 1988 when pushing a trolley.

The only oral evidence presented at the trial was that of the applicant. The documentary evidence included some thirty or more medical reports, a number of certificates, and various other documents. There were ten or more medical practitioners whose views were in evidence, in one form or another, before the judge. It was upon the basis of such evidence that the claim came to be determined. The trial judge found that on or about 19 October 1984, on or about 27 October 1984, and between June 1991 and 18 August 1993, the applicant suffered work related injuries. As far as was relevant, she found him to have been partially incapacitated for the periods: 10 March 1994 - 31 July 1994; and June 1991 - 18 August 1993. In her discretion she made an award in the sum of $150 per week for the period between 10 March 1994 and 31 July 1994.