State of New South Wales v Petrovic [2004] NSWCA 234

New South Wales Court of Appeal

CITATION : State of New South Wales v Petrovic [2004] NSWCA 234 HEARING DATE(S) : 12/07/04 JUDGMENT DATE : 12 July 2004

JUDGMENT OF : Giles JA at 39; Ipp JA at 1; Tobias JA at 43 DECISION : Appeal dismissed with costs.

CATCHWORDS : WORKERS' COMPENSATION - Hospital worker struck twice by a food trolley - Challenge to findings of fact. ND LEGISLATION CITED : Workers Compensation Act 1987 (NSW) CASES CITED : Abalos v Australian Postal Commission (1990) 171 CLR 167 PARTIES : State of New South Wales (Appellant) Jovanka Petrovic (Respondent) FILE NUMBER(S) : CA 40773/03 COUNSEL : M A Elkaim/P Khandhar (Appellant) D E Andrews (Respondent) SOLICITORS : Turks Legal (Appellant) George Traikovitch & Co (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT DC 12556/01 FILE NUMBER(S) : LOWER COURT Herron ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40773/03 DC 12556/01

GILES JA IPP JA TOBIAS JA

Monday 12 July 2004 STATE OF NEW SOUTH WALES v PETROVIC Judgment 1 IPP JA: The respondent was employed by the appellant. One of her tasks was to push food trolleys along various floors at Wollongong Hospital. The trolleys were relatively large. They were so high that the respondent could not see over the top of them. They were also relatively heavy and at times were difficult for one person to push. 2 During the period material to the issues in this appeal the appellant's practice was to arrange for only one person to push a trolley. Since then the practice has changed and three persons are given the task of guiding a trolley through the hospital floors. 3 On two occasions, namely on 16 April 2000 and 15 March 2001 the respondent was struck by a trolley from the rear. On each occasion she was pushing her trolley and another employee of the appellant was pushing a trolley behind her and the trolley behind her struck the rear part of her body. The respondent suffered injuries in consequence of these two accidents and brought proceedings against the appellant for damages for personal injuries. The respondent initiated one set of proceedings in which the two causes of action, one based on the occurrence of 16 April 2000 and the other based on the occurrence of 15 March 2001, were pleaded. 4 The trial judge, Herron DCJ, found that the appellant was negligent as alleged by the respondent and there is no dispute on appeal about that finding. 5 His Honour found that the second accident caused the respondent to suffer damages which exceeded the threshold set out in the Workers Compensation Act 1987 (NSW) and awarded her damages in respect of that accident. 6 As regards the first accident, although his Honour found that the respondent had been injured in the way in which she alleged, his Honour found that the injuries she sustained did not exceed the necessary percentage of the most extreme case as required by the Workers Compensation Act and therefore she did not surmount the threshold. For that reason, his Honour did not enter judgment for her in respect of the first accident. 7 Herron DCJ said that, in assessing the respondent's damages that arose from the second accident, he would bear in mind the damages that she sustained in the first accident. 8 The injuries that the respondent sustained in the first accident were, according to her, the left side of her back, her shoulder and her arm and left side. Herron DCJ noted: "So far as her back was concerned she said that she had pain between the spinal column and the left side of her back. Also she spoke about problems in the shoulder blades area and in the thoracic region." 9 It is clear from a close examination of his Honour's reasons that his Honour was not attempting to identify the precise area of the back that was injured in the first accident. 10 The evidence in regard to the injuries the respondent sustained in the first accident can only be described as diffuse. This may have resulted from the fact that the respondent is an immigrant from Yugoslavia and was required to give evidence through an interpreter. She was able to speak English to some degree but not well enough to make herself understood in court proceedings. At the time of the accident she was unable to read or write in English. Her difficulties with the language had an affect on the way in which she gave evidence and affected the reliability of the information she gave to various doctors, as set out in their reports which were tendered in evidence. 11 My impression of the respondent's evidence regarding the injuries she sustained in the first accident is that she experienced pain in various parts of her back, particularly (but not exclusively) between her shoulder blades. I do not think that she intended to exclude her lower back from the injuries she then received. 12 As regards the second accident, the judge found that a great deal of force was involved when the trolley struck the respondent. In her evidence-in-chief, the respondent said that she felt the impact of the trolley on her lower back and her left leg. She said the pain went through the whole of her body. In cross-examination her evidence again was diffuse. She said that the trolley hit her "straight" in her back. She said that "all" her body was hit. She said the trolley actually covered the whole of her body. She said her back and leg were damaged. She had particular difficulty in distinguishing between the place where her body was hit and the pain which she experienced. 13 Again on a close examination of the evidence it is difficult to make any precise finding as to the specific area of the back about which the respondent was testifying.