PELLEY v MAITLAND BENEVOLENT SOCIETY [2004] NSWCA 323

New South Wales Court of Appeal

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

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 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 it close to the floor. The combination of twisting and endeavouring to lift and pull a heavy bed from that position caused an immediate acute injury to the appellant's lumbar spine. 7 There was an issue at trial as to whether or not Mr Cousins had asked the appellant to make his bed. He denied that he had done so and his evidence was preferred to that of the appellant. However, nothing really turns on this, because there is no suggestion that the appellant was doing something outside her normal duties in attending to the bed. 8 The appellant's supervisor, Ms Wakeham, gave evidence that she had told the appellant that Mr Cousins' bed was "a heavy bed and it's awkward to make" (Black 84). The appellant denied this. The supervisor's evidence was implicitly accepted, but on the basis that the warning was inadequate. 9 The appellant had received some general instruction about lifting techniques, especially involving the lifting of patients. She agreed that she could have called for assistance from the carers, but said (Black 46): I would've had to wait and then I would've got into trouble for calling for a carer to come and help me make the beds they were my responsibility.