Nerve damaged barista awarded over $593,000 compensation for unsafe work practice
Published 06 May 2016
Author: Gerard Malouf
The matter of D’amico v Calvary Hospital Auxiliary was a 2013 public liability action which was heard in the Supreme Court of the ACT. The Plaintiff was awarded $593,700.00 in compensation.
The Plaintiff was a 45 year old Canberra women who suffered from Guillain-Berre Syndrome, a form of nerve inflammation, as an adolescent. This had left her with some unsteadiness in her hands and feet.
The Plaintiff had two adult children, who also lived in Canberra, and two adolescent children from her second marriage.
With a limited work history the Plaintiff completed a coffee preparation and presentation conducted by Lavazza Caffe Expresso. Ultimately the Plaintiff attained a job at Madeleine’s Cafe owned by the Defendant Hospital, Cavalry Hospital.
The Plaintiff was employed at the Cafe for roughly 4 years, from 2004 until 2008. In April 2006 the Plaintiff first made complaint of pain in the elbow and down the wrist of her right hand side. By November 2006 the pain had spread to her shoulder and her rights was swollen and turning blue.
In January 2007 the Plaintiff was diagnosed with Thoracic Outlet Syndrome and had surgery to remove the first rib on the right side. She returned to work shortly after, January being a “quiet period”.
In July 2007 the Cafe was bought from the hospital by Zouki, a Sydney based company.
In November 2008 the Plaintiff quit her job after becoming trapped under a bookshelf. Due to the nerve damage to her right arm the Plaintiff did not have the strength to push the book shelf off her.
The Defendants were found to have not provided a safe system of work, which resulted in the injuries and disabilities to the Plaintiff.
The Plaintiff was awarded $100,000.00 in damages for her pain and suffering. The judge determined that the high levels of pain, disabilities and the unsuccessful surgeries required a considerable sum for the loss of enjoyment of her life. The Judge awarded interest for the Plaintiff’s past pain and suffering.
Senior counsel for the Plaintiff submitted that the Plaintiff’s loss of earnings would be a loss of $481.00 per week. The judge found that at the time of the trial, Plaintiff’s earnings would have been $640.00 per week and awarded $140,000.00 in past economic loss.
There had been substantial workers compensation payments made in the order of $135,000.00. Interest was awarded on a small portion of past income loss not yet paid.
It was accepted by the Court that the Plaintiff was unlikely to obtain gainful employment in the future and the judge award $650.00 per week until the retirement age of the Plaintiff. Making a total of $300,000.00 for the loss of earnings that the Plaintiff suffered. The judge also awarded on this amount the loss of employer funder Superannuation benefits.
The Judge made generous allowances for both past and future medical and treatment expenses.
The Court also allowed a component to cover the commercial value of the service provided gratuitously by the Plaintiff’s family. The Plaintiff’s injuries were such that it mean that she would continue to have difficulties doing the heavier domestic duties.
The final sum awarded to the Plaintiff was $593,700.00.