Viktoria Pecenka v Minister for Health

[2013] HCASL 145

VIKTORIA PECENKA

v

MINISTER FOR HEALTH

[2013] HCASL 145
P30/2013

1. The applicant was employed by the Princess Margaret Hospital for Children in Perth.  The hospital was operated by the respondent.The applicant commenced proceedings in the District Court of Western Australia (Sleight DCJ) claiming, inter alia, that she suffered two psychiatric injuries in the course of her employment as a consequence of the respondent's breach of its duty of care.  The first psychiatric injury was said to have arisen as a result of a number of incidents where another employee behaved in an insulting and aggressive manner towards the applicant.  Sleight DCJ held that the second psychiatric injury was a "resurrection" of the first.

2. On 2 November 2010, Sleight DCJ dismissed the applicant's claim.  In relation to the first psychiatric injury, Sleight DCJ held that it was not foreseeable that the applicant would suffer a psychiatric injury at the relevant time.With respect to the second psychiatric injury, his Honour held that, while reasonably foreseeable, it was not caused by a breach of duty of care by the respondent.

3. The applicant appealed to the Court of Appeal of the Supreme Court of Western Australia (Pullin, Buss and Murphy  JJA) on a number of grounds.  In large part, she sought to challenge findings of fact made by Sleight DCJ.  On 5 December 2012, the Court unanimously dismissed her appeal holding that all her grounds of appeal were without foundation.

4. The applicant seeks an extension of time in which to commence her application for special leave to appeal against the decision of the Court of Appeal.  In the proposed application for special leave the applicant asserts that the Court of Appeal failed properly to perform its appellate function in accordance with established principles.  The applicant also seeks to revisit factual issues determined below.  No error is identified in the decision of the Court of Appeal.  An appeal would not enjoy sufficient prospects of success to warrant the grant of special leave.  That being so, there would be no utility in granting the applicant's application for an extension of time.

5. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
4 September 2013 P.A. Keane