Pelley v Maitland Benevolent Society

CITATION:	PELLEY v MAITLAND BENEVOLENT SOCIETY [2004] NSWCA 323
HEARING DATE(S):	27 July 2004
JUDGMENT DATE:	16 September 2004
JUDGMENT OF:	Mason P at 1; Beazley JA at 67; Santow JA at 68
DECISION:	Appeal upheld with costs.
CATCHWORDS:	NEGLIGENCE - workplace injury - whether finding of contributory negligence justified - whether judge's reasons were adequately stated - assessment of damages. (ND)
PARTIES :	Susan-Ann PELLEY v THE MAITLAND BENEVOLENT SOCIETY
FILE NUMBER(S):	CA 40338/03
COUNSEL:	Appellant: G R Petty SC / P J Kirby Respondent: M Fordham
SOLICITORS:	Appellant: Bale Boshev Lawyers (Hamilton) Respondent: Hunt & Hunt Lawyers (Newcastle)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 410/01 (Newcastle)
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ

CA 40338/2003
DC (Newc) 410/2001

MASON P
BEAZLEY JA
SANTOW JA

Thursday 16 September 2004

Susan-Ann PELLEY v THE MAITLAND BENEVOLENT SOCIETY

JUDGMENT

1 MASON P: The appellant injured her back at the workplace. She recovered damages in the District Court based on her employer’s negligence. This appeal challenges particular components of the award as well as the 25% deduction that was based on a finding of contributory negligence.

Facts

2 The appellant was employed by the respondent as a housekeeper-cleaner at its aged-care facility called Benholme in Maitland. The facility is a complex of five main buildings accommodating 79 residents, most of them living in single rooms.

3 There were seven or eight cleaners generally employed at Benholme. The appellant worked varying hours on a casual basis and she was the only cleaner rostered to work on the morning of Saturday 23 September 2000 when the accident occurred. Other staff then on duty included personal carers, but (as indicated below) they did not usually assist in cleaning or bed-making duties.

4 All bed linen was changed regularly each Friday, on which day beds were fully remade. On Saturdays the appellant’s role was the more limited one of cleaning up rubbish and straightening or making beds. Beds would only be changed if there had been a mishap.

5 One of the residents was Mr Cousins, a stroke victim who had lived at Benholme for more than 12 years. He brought his own bed to the home when he arrived. It was heavier than the beds generally used and there were no castors on its wooden bed legs until after the appellant’s accident. It rested on carpet. Unlike the layout of other rooms, Mr Cousins’ bed was positioned with one side against a wall.

6 While performing her regular duties, the appellant endeavoured to move the bed away from the side wall so that she could more easily remake it. Mr Cousins was not in the bed at the time. The space between the foot of the bed and the adjacent wall was only about 12-18 inches wide. The appellant took up a position at the end of the bed, apparently near the left hand corner. She leant to her right and attempted to lift and pull the end of the bed, holding…