Leppington Pastoral Co Pty Limited v Juweinat [2002] NSWCA 228

New South Wales Court of Appeal

CITATION : Leppington Pastoral Co Pty Limited v Juweinat [2002] NSWCA 228 FILE NUMBER(S) : CA 40826/01 HEARING DATE(S) : 1 July 2002 JUDGMENT DATE : 16 July 2002

PARTIES : Leppington Pastoral Co Pty Limited v Nabil Juweinat JUDGMENT OF : Stein JA at 1; Davies AJA at 2; Foster AJA at 39

LOWER COURT JURISDICTION : District Court LOWER COURT 1402/00 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

COUNSEL : G.F. Little SC with S.M. Kettle (Appellant) G.B. Hall QC with R.B. McCloghry (Respondent) SOLICITORS : Hunt & Hunt (Appellant) Eugene Lepore & Associates (Respondent) CATCHWORDS : Torts - Negligence - Liability - Damages - Worker suffered sciatic back as a result of three incidents - Where damages required to be assessed separately for each incident LEGISLATION CITED : Workers Compensation Act, sections 151E, 151F, 151H CASES CITED: Woolage v The State of New South Wales [2001] NSWCA 256 Zickar v MGH Plastic Industries Pty Limited (1995) 187 CLR 310 DECISION : Appeal dismissed with costs; Cross appeal dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40826/2001

STEIN JA DAVIES AJA FOSTER AJA

Tuesday 16 July 2002 LEPPINGTON PASTORAL CO PTY LIMITED v NABIL JUWEINAT JUDGMENT

1 STEIN JA: I agree with Davies AJA. 2 DAVIES AJA: This is an appeal from the judgment of a Judge of the District Court, his Honour Judge Delaney, in which his Honour awarded damages of $181,397.44 to the present respondent, Nabil Juweinat, who had suffered an injury or injuries to his back during the course of his employment with the appellant, Leppington Pastoral Co Pty Limited. 3 Mr Juweinat, a welder, had been working with the appellant for less than twelve months when, during April and May 1999, he suffered pain and discomfort as a result of three incidents in which he lifted or assisted to lift heavy articles. As a result of the injury or injuries which he incurred during these incidents, Mr Juweinat suffered a permanent disability which has rendered him unable to perform heavy work, and which has, effectively, precluded him from carrying on his employment as a welder. 4 The first issue raised by the appellant is whether there was negligence on its part which contributed to the incidents in which Mr Juweinat was injured. This issue has been the subject of lengthy written submissions but was not the subject of further elaboration in oral argument. The written submissions point to the fact, inter alia, that the appellant provided lifting devices such as a forklift, a hand lifter and a trolley and that there were other workers available on the site who, it was said, would have been available to help Mr Juweinat. 5 The compelling factor in favour of Mr Juweinat's case is that the evidence made it clear that heavy weights had to be moved and lifted and there was no particular system in place to ensure that workers were not injured. No training was given to them, and there was no supervision to ensure that workers did not lift weights which provided a risk to their backs. Evidence was given that, in the first incident, Mr Juweinat lifted a heavy v-shaped metal structure. In the second incident, he helped another employee move a wall oven, which Mr Juweinat estimated to be close to a hundred kilograms. In the third incident, Mr Juweinat assisted one of the principals move a steel beam weighing between eighty and one hundred kilograms. 6 Dr Anne Wyatt, an occupational health and safety consultant gave evidence on behalf of Mr Juweinat. She said that the risk of back injury increases significantly with objects above the range of sixteen to twenty kilograms and that, as weight increases from sixteen up to fifty five kilograms, the percentage of healthy adults who can safely lift, lower and carry the weight decreases. Dr Wyatt said that manual handling intervention programs were readily available and that employers in New South Wales were required to implement the Occupational Health and Safety (Manual) Handling Regulation 1991. She said that there was no evidence that the appellant had carried out the risk assessments and implemented the risk control measures required by the Manual Handling Regulation and by the National Manual Handling Standard and Code of Practice. 7 The trial judge accepted this evidence. It was not contradicted by either lay or expert evidence called on behalf of the appellant. His Honour was entitled to hold, as he did, that the appellant had failed to institute a proper system to ensure that its employees were not injured through the lifting and handling of heavy weights. This challenge to his Honour's judgment fails. 8 The second aspect of the appellant's appeal is the issue of damages. It was submitted that a principle enunciated by Handley, Beazley and Stein JJA in Woolage v The State of New South Wales [2001] NSWCA 256 was not applied in his Honour's judgment. It should be noted that the judgment in Woolage was not issued until after the trial Judge had given his judgment. Morever, the case before the trial Judge was not litigated on the basis outlined in Woolage. 9 In Woolage, the plaintiff had suffered injury in two separate but identical incidents when a desk chair mounted on casters had moved away from him as he was about to sit down. In each case, he fell on the floor, landing on his coccyx. The statement of claim in that case is not set out in the judgment on appeal. In par 7, Beazley JA, with whom Handley and Stein JJA agreed, said: "However the appellant sustained his injuries in two separate accidents, giving rise to two separate causes of action. He sued in respect of those separate causes of action and was entitled to separate awards in respect of each cause of action, assuming that each injury was compensable." 10 The Court of Appeal set aside the judgment below on the ground that only one assessment of damages had been made, whereas the plaintiff was entitled to separate awards in respect of each cause of action. Their Honours held that the global award was incompatible with Part 5 of the Workers Compensation Act 1987 ("the Act") and in particular Section 151G and H. 11 The submission in the present appeal is that, as Mr Juweinat relied upon three incidents, he necessarily relied upon three causes of action and that damages should have been assessed separately, in which case he would not, in respect of any cause of action, have reached the minimum degree of disability for which Section 151H of the Act provides. 12 In order to consider this submission it is necessary to consider the provisions of the Act in some greater detail. The following provisions are relevant: "151 Common law and other liability preserved This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides. 151E Application – modified common law damages