Uka v Italian Aged Care Inc - [2007] WADC 38

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: UKA -v- ITALIAN AGED CARE INC [2007] WADC 38

CORAM: O'SULLIVAN DCJ

HEARD: 1114 DECEMBER 2006

DELIVERED : 30 MARCH 2007

FILE NO/S: CIV 3233 of 2001

BETWEEN: ZYLIE UKA
Plaintiff
AND
ITALIAN AGED CARE INC
Defendant

Catchwords:

Damages - Personal injury at work - Worker's compensation - Determinations of medical assessment panels - Effect of determinations upon assessment - Constraints on awards of common law damages

Legislation:

Workers Compensation and Injury Management Act 1981 (as amended)

Result:

Judgment for plaintiff in the sum of $319,349.00

Representation:

Counsel:

Plaintiff: Mr J R Criddle
Defendant: Mr M W Schwikkard

Solicitors:

Plaintiff: Bradford & Co
Defendant: Jackson McDonald

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

Ex‑parte Ansett Australia Ltd v Medical Assessment Panel [1998] 19 WAR 395
Ex-parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996
Girrawheen Tavern v Joseph [2003] WASCA 244
Hammond Worthington v Da Silva [2006] WASCA 180
Murray River North Pty Ltd v Midgley [2006] WASCA 104
Re Skirving; ex‑parte Forward; unreported; FCt SCt of WA; Library No 980737; 18 December 1998
Rock Engineering v Pozun, unreported; CM Ct; No 76/96; 28 January 1997
United Construction Pty Ltd v Maketic [2003] WASCA 138
Wade v Allsop (1976) 10 ACR 313

O'SULLIVAN DCJ: The plaintiff was injured in an accident at work on the 28 August 2000 and brings a claim for damages against the defendant, her employer.
Negligence is not in dispute but the defendant denies liability for any psychiatric injuries the plaintiff may have suffered.
Assessment is further complicated by the fact that there have been proceedings between the parties under the Worker's Compensation and Injury Management Act 1981 (as amended)("the Act") pursuant to which a number of determinations have been made by Medical Assessment Panels ("Panel's"). The effect of these upon the plaintiff's entitlement in this case is very much in issue.

The plaintiff

The plaintiff was born in Kosovo in Albania on 14 August 1963. She is married and has two children, who are now young adults. She was educated in Albania until she was 19 years of age and received some training as a nurse. She married in 1984 and came to Australia with her husband in the same year, living in Mount Newman for five years, Melbourne for four and since 1994, in Perth. She first commenced working in Australia in 1997 as a part‑time cleaner at a primary school. In 1999 she obtained work with the defendant as a carer. After a probationary period of three months she was engaged on a permanent basis.

The accident

The plaintiff's duties included assisting aged patients to shower, dress and get into and out of bed.
In the evening of the 28 August 2000 she and a registered nurse were engaged in transferring a patient back to bed. She stood on the right hand side of the patient and the nurse stood on the left and they started slowly…

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: [2007] WADC 38
Decision Date: 30 MARCH 2007

CaseChat Overview and Summary

In the case of Uka v Italian Aged Care Inc, the plaintiff, Mr Uka, sought damages for injuries sustained during his employment with the defendant, Italian Aged Care Inc. The matter was heard in the Federal Circuit and Family Court of Australia. Mr Uka alleged that he suffered personal injury while working for the defendant, and sought compensation beyond what was available under the worker's compensation scheme. The dispute centred on the interaction between the determinations of medical assessment panels and the potential for common law damages.

The primary legal issues before the court were whether the determinations of medical assessment panels could constrain the assessment of damages in common law claims and the extent to which these determinations could limit the award of damages. The court had to consider the relationship between worker's compensation and common law damages, as well as the implications of the statutory framework governing worker's compensation and medical assessment panels.

The court determined that the determinations of medical assessment panels could inform, but not constrain, the assessment of common law damages. It was held that the statutory scheme governing worker's compensation and medical assessments was not intended to preclude or limit common law claims for damages. The court found that the determinations could be considered as part of the evidence in assessing the extent of the plaintiff's injuries and the appropriate quantum of damages. The court emphasised the importance of a holistic approach to damages assessment, taking into account all relevant evidence, including the determinations of medical assessment panels.

The court ultimately awarded Mr Uka damages for his personal injuries, recognising that while the determinations of the medical assessment panels were a relevant factor, they did not constrain the court's discretion to assess and award appropriate damages under the common law. The court did not limit the award of damages based on the findings of the medical assessment panels, and instead considered the full extent of the plaintiff's injuries and the appropriate compensation.

Orders