Cook v Karden Disability Support Foundation - [2016] VSCA 263

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2016 0127

MICHELLE LOUISE COOK	Applicant
v
KARDEN DISABILITY SUPPORT FOUNDATION (ABN 91 469 765 852)	Respondent

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JUDGES:		TATE, OSBORN and BEACH JJA
WHERE HELD:		MELBOURNE
DATE OF HEARING:		7 November 2016
DATE OF JUDGMENT:		15 November 2016
MEDIUM NEUTRAL CITATION:		[2016] VSCA 263
JUDGMENT APPEALED FROM:	Cook v Karden Disability Support Foundation (Unreported, County Court of Victoria, Judge Brookes, 16 August 2016)

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ACCIDENT COMPENSATION – Appeal – Application for leave to appeal – Workplace injury – Jury trial – Damages – Pain and suffering damages – Whether jury’s assessment of pain and suffering damages manifestly inadequate – Evidence most favourable to the respondent – Jury’s assessment of damages not manifestly inadequate.

ACCIDENT COMPENSATION – Appeal – Application for leave to appeal – Workplace injury – Jury trial – Contributory negligence – Whether contributory negligence open – Contributory negligence finding open to the jury – Assessment of contributory negligence – Jury assessed contributory negligence at 60 per cent – Whether assessment of contributory negligence of 60 per cent manifestly excessive – Assessment of contributory negligence not manifestly excessive – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B E Walters QC with Mr K D Mueller	Saines Lucas Solicitors
For the Respondent	Mr M F Wheelahan QC with Mr M J Hooper	IDP Lawyers

TATE JA

OSBORN JA
BEACH JA:

In December 2008, the applicant commenced employment with the respondent as a part-time casual disability support worker caring for disabled people.

By a County Court writ, issued on 20 October 2015, the applicant, pursuant to s 134AB of the Accident Compensation Act 1985 (‘the Act’), sought ‘pain and suffering damages’[1] from the respondent in respect of incidents that she alleged occurred in the course of her employment on 28 March 2009 and 9 October 2009. In respect of the incident alleged to have occurred on 28 March 2009, the applicant claimed that she suffered injury to her neck and right shoulder while trying to transfer an intellectually disabled person from a wheelchair to a bed. In respect of the incident alleged to have occurred on 9 October 2009, the applicant claimed that she suffered injury to her neck and shoulder as a result of lifting a wheelchair into the boot of a motor vehicle.
[1]The expression ‘pain and suffering damages’ is defined in s 134AB(37) of the Act to mean ‘damages for pain and suffering, loss of amenities of life or loss of enjoyment of life’.

The applicant’s proceeding was heard over nine days in August 2016 before Judge Brookes and a jury. The applicant claimed that the injuries she sustained in March 2009 and October 2009 were caused by the negligence of the respondent and also by breaches of statutory duties owed by it pursuant to the Occupational Health and Safety Regulations 2007. The respondent denied that it was negligent or in breach of any statutory duty, and alleged that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cook v Karden Disability Support Foundation

Details

AGLC: Cook v Karden Disability Support Foundation [2016] VSCA 263
Case: [2016] VSCA 263
Decision Date: 15 November 2016

CaseChat Overview and Summary

The case of Cook v Karden Disability Support Foundation involves an appeal against the assessment of damages awarded following a workplace injury. The injured party, Cook, sought leave to appeal against the decision of the jury in the District Court of New South Wales, which had awarded damages for pain and suffering and found him 60% contributory negligent. The primary concern was whether the jury's assessment of pain and suffering damages and the level of contributory negligence were manifestly inadequate or excessive, respectively.

The central legal issues that the court had to address included whether the jury’s assessment of pain and suffering damages was manifestly inadequate, and whether the jury's finding of 60% contributory negligence was manifestly excessive. Additionally, the court considered whether the jury was open to making a finding of contributory negligence at all.

The court found that, when considering the evidence most favourably to the respondent, the jury's assessment of damages for pain and suffering was not manifestly inadequate. The court also determined that the finding of 60% contributory negligence was within the range that the jury could reasonably make, and therefore, the assessment was not manifestly excessive. The court concluded that the jury was indeed open to making a finding of contributory negligence, as the evidence supported such a finding. Consequently, the application for leave to appeal was refused.

The court’s decision effectively upheld the jury’s findings and refused the applicant leave to appeal, thereby maintaining the original damages assessment and the contributory negligence finding.

Orders