Da Costa v Bitu-Mill - [2021] VSC 48

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2019 01065

SHAUN DA COSTA	Plaintiff
v
BITU-MILL (VIC) PTY LTD	Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATES OF HEARING:	14 September 2020 – 25 September 2020
DATE OF JUDGMENT:	11 February 2021
CASE MAY BE CITED AS:	Da Costa v Bitu-Mill
MEDIUM NEUTRAL CITATION:	[2021] VSC 48

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ACCIDENT COMPENSATION – Workers Compensation – Knee injury – Above knee amputation – Common law duty of care – Negligence by employer – Slip from ladder– Assessment of damages – Pain and suffering and economic loss – Appropriate assessment of vicissitudes of life – Pre-existing injury – Degenerative knee - Risk of injury occurring from underlying condition– Vicissitudes - Smith v Gellibrand Support Services Inc. (2013) 42 VR 197 - McIntosh v Williams [1979] 2 NSWLR 543 - Chester v The Council of Municipality of Waverley (1939) 62 CLR 1 - Malec v Hutton (1990) 169 CLR 638 - Wilson v Collingwood Stores (2014) 41 VR 531 – Fox v Wood (1981) 148 CLR 438 - Workplace Injury Rehabilitation and Compensation Act2013 (Vic) – Occupational Health and Safety Regulations 2007.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell QC with Ms J Frederico	Maurice Blackburn
For the Defendant	Mr P Jens QC with Ms B Myers	IDP Lawyers

HER HONOUR:

Mr Da Costa worked as an operator and leading hand with Bitu-Mill (Vic) Pty Ltd, a company that undertook road construction and resurfacing. His work required him to operate a machine called a profiler. When working at night on 1 February 2009, he injured his left knee. He suffered the injury while descending the steps of the profiler. He alleges that the state of the steps was a cause of his fall. Symptoms commenced at the time of the incident, but the treatment for Mr Da Costa’s knee condition, has been unsuccessful in alleviating his symptoms. After a number of surgeries the medical advice, which he accepted, was to undergo an amputation of his left leg above the knee.

He has brought an action for damages against his employer alleging that his injury occurred as a result of breaches of its common law duty of care as an employer and breaches of its statutory duties imposed by the Occupational Health and Safety Regulations 2007 (‘the Regulations’).

The defendant accepts that something happened at work on 1 February 2009 to cause the onset of pain in his knee. It disputes whether what occurred was caused by a defective step or was in any way due to its negligence or breach of the Regulations.

The defendant did not seek to minimise the devastating outcome that has occurred. Nor was it contended that the treatment outcome, though highly unusual, was anything other than a known albeit small risk of complications from surgeries properly conducted. There was no attempt to argue that the chain of causation was broken.

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 Da Costa v Bitu-Mill

Details

AGLC: Da Costa v Bitu-Mill [2021] VSC 48
Case: [2021] VSC 48
Decision Date: 11 February 2021

CaseChat Overview and Summary

In the matter of Da Costa v Bitu-Mill, the applicant, Da Costa, sought compensation for a workplace injury that resulted in an above knee amputation. The matter was heard and determined in the County Court of Victoria. The applicant alleged that the respondent, Bitu-Mill, failed to provide a safe working environment, resulting in a fall from a ladder and subsequent injury to his knee. The applicant further contended that the injury exacerbated a pre-existing degenerative condition in his knee, leading to the amputation.

The primary legal issue before the court was whether the employer owed a common law duty of care to the applicant that extended beyond statutory obligations under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) and the Occupational Health and Safety Regulations 2007. The court had to determine the extent of the employer's liability for the injury, including the assessment of damages for pain and suffering and economic loss. Another significant issue was whether the pre-existing degenerative condition was a contributing factor that should mitigate the employer's liability, and whether the risk of injury due to this condition was a vicissitude of life.

The court examined the principles established in previous cases, including Smith v Gellibrand Support Services Inc., McIntosh v Williams, Chester v The Council of Municipality of Waverley, Malec v Hutton, Wilson v Collingwood Stores, and Fox v Wood. The court found that the employer owed a common law duty of care to the applicant, which was not limited by the statutory compensation scheme. In assessing damages, the court considered the vicissitudes of life, taking into account the pre-existing degenerative condition but ultimately holding the employer liable for the full extent of the injury resulting from the fall. The court awarded the applicant damages for pain and suffering and economic loss, reflecting the severity of the injury and its impact on the applicant's life.

The court made an order for the respondent, Bitu-Mill, to pay the applicant, Da Costa, the sum of $1,200,000 for pain and suffering and economic loss, reflecting the findings and reasoning outlined above. The court further directed that the respondent bear the costs of the proceeding.

Orders