Jesionkowski v Illawarra Retirement Trust [2000] NSWSC 1013

New South Wales Supreme Court

CITATION : Jesionkowski v Illawarra Retirement Trust [2000] NSWSC 1013 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20081/00 HEARING DATE(S) : 29 - 31 March 2000 JUDGMENT DATE : 3 November 2000

PARTIES : Lisa Rae Jesionkowski (Plaintiff) Illawarra Retirement Trust (Defendant) JUDGMENT OF : Dunford J

COUNSEL : D Wheelahan QC / K Rewell (Plaintiff) G Parker (Defendant) SOLICITORS : Nagle & McGuire (Plaintiff) Moray & Agnew (Defendant) CATCHWORDS : NEGLIGENCE - employer/employee - nurse slips on floor in nursing home - assessment of damages LEGISLATION CITED : Workers Compensation Act 1987, Part 5 DECISION : Judgment for plaintiff; damages see paras 40-41.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J Friday, 3 NOVEMBER 2000 20081/00 LISA RAE JESIONKOWSKI v ILLAWARRA RETIREMENT TRUST JUDGMENT 1 HIS HONOUR: In these proceedings which are governed by Part 5 of the Workers Compensation Act 1987, the plaintiff claims damages for personal injuries allegedly suffered by her in a fall at her place of employment, the Culburra Nursing Home, owned and operated by the defendant on 14 July 1997. 2 On that day the plaintiff, who was at the time employed as a nursing assistant, was called in to do an extra shift from 11 am for 8 hours. Shortly after she commenced duty, she received a call from a resident who needed assistance to go to the toilet. She assisted him out of his bed and into a wheelchair and wheeled him to the toilet, used the mechanical lift to place him on the toilet and then returned after a time and placed him back on the wheelchair to take him to the dining room for lunch. On their way to the toilet the hallway floor was dry, when they got back to the hallway heading for the dining room she saw the cleaner, Shane Lewis, who told her the floor was wet and to be careful; and she knew from past experience that when the floor which was linoleum was being cleaned it was extremely slippery, and as she described it, "shiny like glass". Usually one side of the hallway was cleaned and then the other. 3 The resident wished to go to his room which was on the wet side of the hallway before going to the dining room; the plaintiff started to wheel the wheelchair along the dry side, but then she saw another elderly resident walking towards her on that side, so she moved the wheelchair to the other side which was the wet side, walking very carefully; but after taking about 3 steps, her feet slipped forward from under her and she landed heavily on her backside. She got herself up and continued working for the rest of her shift and again on following days until Friday 18 July. 4 Initially she felt she had bruised her backside but the pain got worse and included pain in her lower back area which radiated down her legs, particularly the left, so on 22 July she saw Dr Rossman and was later diagnosed as suffering from a lumbar sacral disc protrusion and related symptoms. 5 The plaintiff's Report of Accident dated 1 August 1997 (Ex. A) describes the accident as happening when she was lifting a resident with the mechanical lift, but I am satisfied that the plaintiff, as she claims, was distressed and not thinking clearly when she completed the form, and that the accident happened as I have described above, which is confirmed by the defendant's Report of Injury dated 5 August 1997 (Ex. B). Neither form, nor an earlier report by the plaintiff (Ex. 2), refers to the other patient, but the plaintiff impressed me as an honest witness, and I see no reason to not accept her evidence as to the presence of the other resident.