Damages – Recent cases

ACT … Wrist See Papp v Finley & Insurance Australia Limited 23/4/15 [2015] ACTSC 74 where P, who is now 53, injured her wrist and shoulder in a car accident in July 2011. “With respect to the right wrist, it was established [P] … suffered a tear of the lunotriquetral ligament” @5. P suffered a “severe anxiety response which is noticeable when she is a driver or passenger in a motor vehicle” @9. P is slower at performing her duties as system operator. “[B]efore the accident, the plaintiff was very active and was able to cope with all household activities and those at work. Since the accident, the plaintiff has endeavoured to maintain her full-time employment which she has been able to do because her employer has given her different duties. In the household … the plaintiff now requires assistance, due to her ongoing pain in her right wrist and left shoulder, in undertaking some household tasks” @111. P has had no time off work since early 2012. P’s right hand and shoulder can be easily aggravated. If P decides not to have a shoulder operation she will be restricted to lighter work. “Such aggravation could jeopardise her employment and impact adversely upon her ability to perform domestic duties” @126. Cowdroy AJ assessed P as entitled to $90,000.00 by way of general damages. The effects of those injuries are continuing, disabling and painful, which will almost certainly affect her in the fulfilment of both her work and domestic duties. Those injuries can lead to periods of incapacity, which affect her in her employment and her home duties” @132. Other...

Unfair dismissal – clean shaven policy

Dismissal – Lawful practice, policy, regs etc (not following) [2015] FWC 1838 SA Felton v BHP (a clean shaven policy existed at R “in the context of the need to wear appropriate Personal Protective Equipment (PPE), being Respirator Protective Equipment (RPE) – face masks or respirators. This need arises due to the nature of the mining and processing environment and in particular potential exposure to Crystalline Silica and other dusts, diesel particulate matter (DPM) and radon decay products … The extended application of the clean-shaven policy arose from advice received by BHP Billiton in 2013 that DPM was a human carcinogen and that further control measures should be adopted to limit exposure … [A] has for many years had a goatee beard and a moustache. There is no dispute that this is not consistent with the clean-shaven policy and would prevent the kind of respirator intended for supply by BHP Billiton to Mr Felton from working appropriately” @5-7 – A contended the “clean-shaven policy and the related instruction was not valid in light of the circumstances including the statutory requirements for consultation on such matters … [and] there was not a causal connection between the policy and the alleged work health and safety … risk, in light of the offer to purchase the more advanced protection afforded by the Airstream helmet” @9 – valid reason found – dismissal not harsh...