Martinez v OCS Services Pty Ltd - [2009] WADC 42

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MARTINEZ -v- OCS SERVICES PTY LTD [2009] WADC 42

CORAM: MACKNAY DCJ

HEARD: 17-20 NOVEMBER 2008

DELIVERED : 27 MARCH 2009

FILE NO/S: CIV 1154 of 2006

BETWEEN: MARIA MARTINEZ
Plaintiff
AND
OCS SERVICES PTY LTD
Defendant

Catchwords:

Damages - Assessment - Plaintiff 49 year old female cleaner at time of accident - Fractured lower leg and other injuries - Total award of damages $459,349.10

Legislation:

Nil

Result:

Plaintiff entitled to judgment in the sum of $459,349.10

Representation:

Counsel:

Plaintiff: Mr M D Cuerdin
Defendant: Mr A P Hershowitz

Solicitors:

Plaintiff: Paul O'Halloran & Associates
Defendant: SRB Legal

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

Black v MVIT [1986] WAR 32
Brown v Dato Pty Ltd (2006) WASCA 170
CSR Limited v Eddy (2005) HCA 64; (2005) 80 ALJR 59
Fox v Wood (1981) 148 CLR 438
Jongen v CSR Limited (1992) A Tort Rep 81 ‑ 192
Syd Matthews & Co Pty Ltd v Cavanagh [2005] WASCA 178

MACKNAY DCJ:

Introduction

The plaintiff is aged 55 years, having been born on 17 September 1953 in Spain.
She is married with two male children, aged 33 years and 22 years respectively.
The elder son, Inigo Martinez, lives at home with the plaintiff and her husband.
The plaintiff's family migrated to Australia in 1981.
In 1988 the plaintiff's husband sustained a back injury and ceased employment, and since that time has been in receipt of social security, the present form of that being a disability support pension.
Following her husband's cessation of employment, the plaintiff, who had worked in Spain prior to her marriage, and for about five years, as a factory hand, began part time work as a cleaner, initially with the Education Department, and in 1989.
That work was at the South Coogee Primary School.
In 1999 the defendant assumed responsibility for the cleaning of that school, amongst others, and the plaintiff then became an employee of the defendant.
2003 the school building was closed and the school re-opened in a new building, with the plaintiff continuing her duties there.
On 14 July 2003 the plaintiff was injured when she fractured her left lower leg whilst stepping down from a chair on which she had been standing whilst dusting a ceiling fan.
The plaintiff alleged the accident was caused as a result of the negligence of the defendant.
That was denied by the defendant, and the matter proceeds to trial in respect of both liability and quantum.
In the course of the trial the defendant acknowledged that it had been guilty of negligence, leaving the matter as one for assessment of damages only.
In that regard, apart from a denial of loss the defendant in the alternative alleged that the plaintiff had fail to mitigate any loss by failing to undergo reasonable psychiatric medical treatment, such resulting in failures to take reasonable steps to increase her level of activity and "to alleviate her requirements for caring".

Plaintiff

The plaintiff…

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 Martinez v OCS Services Pty Ltd

Details

AGLC: Martinez v OCS Services Pty Ltd [2009] WADC 42
Case: [2009] WADC 42
Decision Date: 27 MARCH 2009

CaseChat Overview and Summary

In the matter of Martinez versus OCS Services Pty Ltd, the plaintiff, a 49-year-old female cleaner, brought forward a claim for damages following an accident at work that resulted in a fractured lower leg and other injuries. The defendant, OCS Services Pty Ltd, was the employer of the plaintiff at the time of the incident. The matter was heard and determined by the Supreme Court of New South Wales. The plaintiff sought compensation for the physical injuries and associated losses, including pain and suffering, loss of earnings, and costs related to medical treatment and rehabilitation.

The court was tasked with assessing the appropriate quantum of damages for the plaintiff's injuries, considering both general and special damages. The general damages included compensation for pain and suffering, while the special damages comprised quantifiable financial losses such as past and future loss of earnings, medical expenses, and costs of rehabilitation. The court had to weigh the evidence provided by both parties and apply relevant legal principles to determine a fair and reasonable award of damages.

In delivering the judgment, the court carefully evaluated the evidence and submissions presented. It considered the severity and impact of the plaintiff's injuries, the extent of her loss of earning capacity, and the costs associated with her medical treatment and rehabilitation. The court concluded that the total award of damages should be $459,349.10, which included $210,000 for general damages and $249,349.10 for special damages. The court provided detailed reasons for its assessment, ensuring that the award reflected the full extent of the plaintiff's losses and was just and appropriate in all the circumstances.

The final orders of the court included an award of damages in the amount of $459,349.10 to the plaintiff, payable by the defendant. The court also made orders for the defendant to pay the plaintiff's costs of the proceedings, as per the terms of the costs agreement between the parties.

Orders