Vourlas v Home Care Service of New South Wales [2006] NSWSC 27

New South Wales Supreme Court

CITATION : Vourlas v Home Care Service of New South Wales [2006] NSWSC 27

HEARING DATE(S) : 04/07/2005 - 07/07/2005, 11/07/2005, 22/07/2005, 29/07/2005

JUDGMENT DATE : 8 February 2006

JUDGMENT OF : Hislop J

DECISION : 1. Judgment for the plaintiff against the defendant in the sum of $340,332.77; 2. The defendant to pay the plaintiff's costs.

CATCHWORDS : Negligence - Employer's liability to employee - Quantum of damages - No questions of principle.

LEGISLATION CITED : Workers Compensation Act 1987 - Pt 5

CASES CITED : K'Mart Australia Limited v McCann [2004] NSWCA 283 Malec v JC Hutton Pty Limited (1990) 169 CLR 638

PARTIES : Plaintiff - Sesiel Vourlas Defendant - Home Care Service of New South Wales

FILE NUMBER(S) : SC 20319/04

COUNSEL : Plaintiff - Mr M Cranitch SC with Mr J Jobson Defendant - Mr I Judd

SOLICITORS : Plaintiff - Milicevic Solicitors Defendant - Hunt & Hunt Lawyers

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HISLOP J

8 February 2006

20319/04 Sesiel Vourlas v Home Care Service of New South Wales

JUDGMENT

Introduction 1 This is a claim by the plaintiff to recover damages from her employer for personal injuries allegedly sustained in the course of her employment on 6 January 2001. The issues for determination by the Court are liability, contributory negligence and damages, the latter being subject to the limitations imposed by Part 5 of the Workers Compensation Act 1987 (the Act) as it was at the time of injury.

LIABILITY

The plaintiff's case 2 The plaintiff was employed by the defendant as a Grade 3 Care Worker. This involved attending at disabled persons' homes to assist them with their personal care and housework. It was physically demanding work involving a considerable amount of lifting, pushing, bending, kneeling and the like. 3 The plaintiff, as part of her duties, was required on the evening of 6 January 2001 to attend upon a disabled person in his home. The patient was a very heavy man who was suffering from multiple sclerosis. He was subject to involuntary spasming which was known to the defendant. 4 In June 1998 the defendant had commissioned a work procedures report from an occupational therapist in respect of the patient. The occupational therapist reported, among other things, that the transferring of the patient to and from his wheelchair was difficult for a single person and required strength, speed and timing. The report recommended: In view of the heavy nature of the job, and in the interests of safety for all concerned, the job be classified as a two person job.