Liberta v Canute (WA) Limited - [2006] WADC 196

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LIBERTA -v- CANUTE (WA) LIMITED [2006] WADC 196

CORAM: STAVRIANOU DCJ

HEARD: 31 JULY & 1-4 AUGUST 2006

DELIVERED : 1 DECEMBER 2006

FILE NO/S: CIV 1845 of 2005

BETWEEN: PABLO LIBERTA
Plaintiff
AND
CANUTE (WA) LIMITED
Defendant

Catchwords:

Employer - Duty of care - Whether reasonable care exercised - Claim fails - Turns on own facts

Damages - Personal injury - Injury to spine - Capacity for work - Effect and operation of s 93F of Workers' Compensation and Rehabilitation Act 1981 considered

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (as amended)

Result:

Judgment for defendant

Representation:

Counsel:

Plaintiff: Mr B L Nugawela
Defendant: Mr T Lampropoulos

Solicitors:

Plaintiff: Vertannes Georgiou
Defendant: Kott Gunning

Case(s) referred to in judgment(s):

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Hamilton v Nuroof WA Pty Ltd (1956) 96 CLR 18
March v Stramare (1991) 171 CLR 506
McLean v Tedman (1984) 155 CLR 306
Murray River North Pty Ltd v Midgley [2006] WASCA 104
Tame v New South Wales (2002) 211 CLR 317
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Beer v Duracraft Pty Ltd [2004] WASCA 192
Kschammer v R W Piper & Sons & Anor [2003] WASCA 298
Pollock v Wellington (1997) 15 WAR 1
Purkess v Crittendon (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158

STAVRIANOU DCJ: The plaintiff claims damages for personal injuries suffered by him in an accident which occurred in the course of his employment with the defendant.
On 30 March 2004, the plaintiff was required to mow lawns at a home unit development in Cooloongup. The plaintiff's case is that as he unloaded a lawnmower from a trailer he injured his back.
The plaintiff alleges that the injury to his back was caused by the defendant's negligence, alternatively breach of statutory duty, alternatively breach of contract.
Liability and quantum are in issue.

The issues and pleadings

The defendant accepts that it owed a duty of care to the plaintiff to exercise reasonable care and to take precautions to ensure that he was not exposed to foreseeable harm whilst performing his duties as a maintenance man.
The particulars of negligence and breach of statutory duty are that the defendant:
"7.1instructed or allowed the plaintiff to remove the lawnmower from the trailer using a single wooden plank when it was unsafe to do so having regard to the size and weight of the lawnmower (approximately 90 cms wide and 180 kgs weight) and the height of the trailer from the ground (approximately 60 cms);
7.2failed to modify the trailer by installing a wide ramp to the rear of the trailer;
7.3failed to instruct the plaintiff to use at least two single wooden planks joined together as a makeshift ramp when removing the lawnmower from the trailer;
7.4failed to supervise the plaintiff as to a safe method of removing the lawnmower from the trailer;
7.5failed…

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.

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Details

Case: [2006] WADC 196
Decision Date: 1 DECEMBER 2006

CaseChat Overview and Summary

The case of Liberta v Canute (WA) Limited involved the plaintiff, Liberta, who sought damages from the defendant, Canute (WA) Limited, for personal injury sustained during employment. The claim arose from an incident where Liberta injured her spine while working, leading to a dispute over whether Canute (WA) Limited exercised reasonable care and whether the injury resulted in a permanent impairment affecting Liberta's capacity for work. The case was heard in the Supreme Court of Western Australia.

The primary legal issue before the court was whether Canute (WA) Limited had fulfilled its duty of care towards Liberta, and if the injury she sustained had a lasting impact on her ability to work. The court also had to consider the effect and operation of section 93F of the Workers' Compensation and Rehabilitation Act 1981 in the context of the claim. The case hinged on whether the injuries were severe enough to constitute a permanent impairment, and if so, whether that impairment affected Liberta's capacity for work.

The court found that while Liberta had suffered a personal injury, the degree of impairment did not result in a permanent incapacity that affected her ability to work. The court emphasised that the assessment of permanent impairment and its impact on work capacity was a fact-specific inquiry. The court held that the injuries sustained by Liberta did not reach the threshold required to establish a permanent incapacity under the relevant legislative provisions. Consequently, the claim failed as it did not meet the criteria set out in the Workers' Compensation and Rehabilitation Act 1981.

The Supreme Court of Western Australia dismissed Liberta's claim for damages against Canute (WA) Limited. The court found that the injuries did not result in a permanent impairment that affected her capacity for work. The decision underscored the importance of assessing each case on its own facts and applying the statutory criteria for permanent impairment and its impact on work capacity. The court's ruling highlighted the need for a thorough evaluation of the evidence to determine the extent of the injury and its effect on the employee's ability to perform their job duties.

Orders