Jovanovic v Hunter Area Health Service [2000] NSWCA 379

New South Wales Court of Appeal

CITATION : Jovanovic v Hunter Area Health Service [2000] NSWCA 379 FILE NUMBER(S) : CA 40779/99 HEARING DATE(S) : 24 November 2000 JUDGMENT DATE : 24 November 2000

PARTIES : Dragoljub Jovanovic v Hunter Area Health Service JUDGMENT OF : Meagher JA at 1; Handley JA at 9; Giles JA at 12

LOWER COURT JURISDICTION : District Court LOWER COURT 638/99 at Newcastle FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: B.Twoomey QC/ B.Ingram Respondent: R.R. Bartlett SC/W. Austron SOLICITORS : Appellant: McClellands Respondent: Hunt & Hunt CATCHWORDS : Negligence - finding of Judge as to credibility - LEGISLATION CITED : Workers Compensation Act, s 151D,H - DECISION : 1. Appeal dismissed.; 2. No order as to costs of the appeal and in the application for leave.

- 3 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA: 40779/99

MEAGHER JA HANDLEY JA GILES JA Friday 24 November 2000 DRAGOLJUB JOVANOVIC v HUNTER AREA HEALTH SERVICE JUDGMENT 1 MEAGHER JA: Mr Dragoljub Jovanovic filed a statement dated 8 February 1999 alleging negligence against his employer, the present respondent, John Hunter Hospital, in respect of two work related incidents, one on 25 January 1995 and one on 2 July 1997. 2 In relation to the former of those incidents, s.151D(2) of the Workers Compensation Act is of some relevance. It provides "A person to whom compensation is payable under this Act is not entitled to commence proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than three years after the date on which the injury was received except with the leave of the court in which the proceedings are to be taken." 3 Accordingly, Mr Jovanovic was obliged to obtain an order extending the time in which he could sue in respect of the first incident. This he sought to do but Her Honour Judge English dismissed his claim with costs. The present appeal just challenges her Honour's discretionary decision. 4 For my part, not only do I think that any challenge to her Honour's ruling must fail, I also think her Honour's decision was unquestionably correct. 5 Mr Jovanovic has given various accounts of the nature and even of the date of the 1995 accident. Whenever it was, if it existed at all, it must have been trivial because after a few days off he returned to his original work which was very strenuous and continued to work there for over a year without any form of back pain. To whom, if anyone, he reported the accident is again the subject of a number of versions. 6 In these circumstances it seems to me that there was no serious injury within the meaning of s 151H and the plaintiff could not pass the statutory threshold. Consequently, for her Honour to have granted the application would have been a futility. 7 But that is not the only reason her Honour gave. Her Honour also dealt with a matter which is normally not appropriate in these circumstances, that is the plaintiff's credit. She pointed out that not only were the facts which I have outlined accurate but also that Mr Jovanovic lied with regard to the existence and nature of a previous back incident which took place in 1994. To be less than forthcoming about such a matter when seeking the indulgence of the Court on a similar matter is of no trifling concern. She found him not to be a witness of credit and in my view although unusual, in such a case she was quite entitled to do so. 8 I am of the view that the appeal should be dismissed with costs. 9 HANDLEY JA: I agree that this appeal fails but for my part I would not have come to that conclusion without the benefit of hearing further argument but for the effect in this case of s.151H and related provisions in the Workers Compensation Act which prevent an injured worker from recovering damages for industrial injury unless certain thresholds are passed. In this case, the evidence of the plaintiff that he was able to return to work three weeks after the incident of 25 January 1995 and remained at work without further loss of time until the 1997 episode coupled with the evidence of Dr Leisel in report form which is in the Appeal Book persuades me that the plaintiff has no realistic prospects whatever of passing the thresholds under the Act in regard to the incident of 25 January 1995 and for that reason I agree that the appeal fails and should be dismissed. 10 For my part it appears that that ground was not taken before the primary judge and I would wish to hear further argument on the question of costs before we dispose of the costs question of this appeal because it is well established that if an appeal fails on a ground not taken below that this is a reason for the Court making a special order, typically an order that there be no order as to costs of the appeal. 11 Subject to those matters, I agree that the appeal fails and should be dismissed. 12 GILES JA: I agree that the appeal should be dismissed and am content to confine my reason to the question of the threshold, and to adopt what Handley J has said in that respect. 13 MEAGHER JA: In regard to the costs of the appeal and in the application for leave each party is to pay its own costs. No order as to costs.