El-Tarraf v Linknarf Ltd [2003] NSWSC 1144

New South Wales Supreme Court

CITATION : El-Tarraf v Linknarf Ltd [2003] NSWSC 1144 HEARING DATE(S) : 10, 11, 12, 14 February, 27, 29 October 2003 JUDGMENT DATE : 8 December 2003 JURISDICTION: Common Law Division JUDGMENT OF : Studdert J DECISION : I assess damages in the sum of $203,272.79. To afford the parties an opportunity to consider this judgment, the matter is to be relisted on 19 December 2003 to address the issues of interest, judgment and costs.

CATCHWORDS : Industrial accident - liability admitted - for assessment of damages only. LEGISLATION CITED : Workers' Compensation Act, Pt 5, s 151G, 151L, 151M PARTIES : Joe El-Tarraf (Plaintiff) Linknarf Limited (Defendant) FILE NUMBER(S) : SC 20162/99 COUNSEL : A.J. Bartley SC/C. Thompson (Plaintiff) P.J. Deakin QC/P.J. Nolan (Defendant) SOLICITORS : Carroll & O'Dea (Plaintiff) Sparke Helmore (Sydney) (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Monday 8 December 2003

20162/99 JOE EL-TARRAF v LINKNARF LIMITED

JUDGMENT 1 HIS HONOUR: The plaintiff, Joe El-Tarraf, claims damages from the defendant, Linknarf Limited (in liquidation), for injury allegedly sustained in the course of his employment with Franklins Limited on 4 April 1996. When the proceedings were commenced Franklins Limited was named as defendant, but there was a change of name and the company went into liquidation in May 2002. There being no objection by the liquidator, leave was granted by a registrar of the court for the plaintiff to proceed against Linknarf Limited (in liquidation). 2 As at 4 April 1996 the plaintiff was employed by Franklins as an assembler and picker. He claims to have injured his right knee when working at a loading dock in the country loading area. Because the trays of some of the trucks using the loading dock differed in height from the loading surface of the dock, metal plates called levellers were used to provide ramp access between the back of trucks to be loaded and the level of the dock when required. On 4 April 1996 there was difficulty with the truck the plaintiff was assisting to load in forcing the leveller employed down to the tray of the truck, and the plaintiff had to jump on it. His efforts were unsuccessful. Unbeknown to him, a truck driver jumped on the leveller behind him. The leveller went down and impacted with the tray of the truck, striking it very hard so that it went up and down twice. The plaintiff claimed that immediately he felt something wrong with his knee. 3 The plaintiff's description of that event has not really been the subject of challenge and is to be accepted. The plaintiff's claim against the defendant is in negligence and at the outset the Court was informed that the matter was for assessment of damages only. 4 The nature of the injury which the plaintiff claims to have suffered is a torn lateral meniscus in the right knee. I shall shortly review the medical evidence in this case, but the plaintiff's treating surgeon when cross examined agreed that a tear of the lateral meniscus is ordinarily occasioned in some twisting or torsion movement. The plaintiff here described no such movement. However, as Dr Rowden opined, patients are often unaware of any torsion or twisting injury at the time of the jarring, and that, in any event, such movement is not always present. The fact that the plaintiff described no twisting activity when the knee was injured does not cause me to find that he did not suffer injury as claimed. On the balance of probabilities, I am indeed satisfied that the plaintiff did sustain a torn lateral meniscus in the incident described above. 5 The real issue in this case has been how serious have the consequences of that injury been. What is the nature and extent of any ongoing disability and what, if any, has been the resultant loss of earning capacity? 6 The plaintiff presents a very substantial claim for damages indeed. Apart from a substantial claim for the non economic aspects of general damages, the plaintiff claims wage loss calculated in excess of $230,000 to date and an allowance for future loss of earning capacity in excess of $220,000. The defendant, on the other hand, submits that the plaintiff has not proved an entitlement to damages having regard to the fact that assessment is governed by Pt 5 of the Workers' Compensation Act 1987. 7 There was an earlier trial in these proceedings but the Court of Appeal allowed the appeal which followed and ordered a new trial to proceed on the basis that breach of duty had been established. Hence the present trial. Whilst Mr Deakin invited me to consider a review of the medical evidence given at the earlier trial as contained in the judgment of the former trial judge, I do not consider that I would be assisted by that exercise. The evidence given at the first trial was not as such tendered at the second trial. It is my task to determine the issues between the parties based upon my assessment of the evidence that has been introduced before me. 8 The assessment of the credibility and the reliability of the plaintiff's evidence is of the utmost importance in this case. I propose to review the plaintiff's evidence and then the medical evidence before expressing my relevant findings.