Damages assessments – Recent cases

Pregnancy – Potential problems if gets pregnant

See Kaur v Victorian WorkCover Authority 26/11/14 [2014] VSCA 300 where “contention that the judge, having found that the appellant suffered from a discogenic injury in her lower back with resultant permanent pain and restriction, ought to have taken judicial notice of the fact that ‘a woman with disc bulges in the lower back would suffer enhanced pain during pregnancy’ must be rejected” @42. “It is not possible to say that it is inevitable that a woman who becomes pregnant and who has a particular form of disc bulge will thereby have their lower back pain exacerbated. The particular effect of pregnancy upon a woman’s body is variable and, given that variability, if it is to be taken into account, it must be the subject of medical evidence as to what is likely to occur in the circumstances of the particular woman” @44. “The contention that the trial judge denied the appellant natural justice in not warning her that she would not make a finding that pregnancy pain be taken into account because it was not supported by medical evidence cannot be sustained” @49.

Night-shift workers

See Fraser v Burswood Resort (Management) Ltd 15/7/14 [2014] WASCA 130 re scope of duty owed to night shift worker who lost control of her car and was injured when driving home at 4am.

NSW CLA s5 … Ice Skating

In Moor v Liverpool Catholic Club Ltd 25/6/13 [2013] NSWDC 93 Levy SC DCJ found that the D breached its duty of care to the P who fell and injured his ankle while descending stairs wearing ice skates whilst on his way to the ice arena. The stairs were uneven in width. They were wet. D could have told skaters to put their skates on after descending the stairs. P was not contributorily negligent. Appeal allowed re liability only [2014] NSWCA 394. “The primary judge erred in not finding that the risk of harm was ‘obvious’ within the meaning of s 5F. That is the position, irrespective of whether the relevant risk is described as including that of slipping and falling on stairs that are or are likely to be wet” @41. “[T]he effect of s 5H(1) is that the appellant did not owe a duty of care to the respondent to warn him of what was an obvious risk” @52. “The primary judge held at [88] that ‘the activity of descending the stairs was merely preparatory to engaging in the recreational activity of ice skating. That preparatory activity was not in itself [a] dangerous recreational activity’. In my view, that conclusion did not involve error” @55. A not liable.