Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409

Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409

The respondents breached their duty of care by proceeding with a vocational assessment involving strenuous physical activity (including crawling) soon after the appellant's shoulder surgery, contrary to medical advice; this caused aggravation of the appellant's pre-existing injuries. The primary judge's award for non-economic and economic loss was manifestly erroneous given evidence of substantial worsening in the appellant's condition; appropriate awards were substituted. Domestic assistance did not meet statutory threshold for damages under s 15 Civil Liability Act.

Parties
Appellant and Cross Respondent: Carolyn June Basha; First Respondent and First Cross Appellant: Vocational Capacity Centre Pty Ltd; Second Respondent and Second Cross Appellant: David Verhagen
Jurisdiction
Australia
Judgment Date
15 December 2009
Procedural Posture
Tort/negligence Claim / Appeal and Cross Appeal From District Court Decision
Outcome
Cross appeal dismissed with costs; appeal allowed with costs; primary judge's awards set aside; parties to file proposed orders for substituted damages including interest.
Legal Topics
Negligence, Duty of Care, Breach, Damages, Personal Injuries, Non Economic Loss, Economic Loss, Domestic Assistance, Workers Compensation
Torts Personal Injury Negligence Duty of Care Breach Damages Personal Injuries Non Economic Loss +3 more

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Parties

Carolyn June Basha

Appellant and Cross Respondent

Vocational Capacity Centre Pty Ltd

First Respondent and First Cross Appellant

David Verhagen

Second Respondent and Second Cross Appellant

Procedural Posture

Tort/negligence Claim / Appeal and Cross Appeal From District Court Decision

Legal Issues

  1. 1 Whether respondents breached duty of care owed to appellant in conducting vocational assessment shortly after shoulder surgery
  2. 2 Whether damages awarded for non-economic loss, economic loss, and domestic assistance were inadequate

Ratio Decidendi

The respondents breached their duty of care by proceeding with a vocational assessment involving strenuous physical activity (including crawling) soon after the appellant's shoulder surgery, contrary to medical advice; this caused aggravation of the appellant's pre-existing injuries. The primary judge's award for non-economic and economic loss was manifestly erroneous given evidence of substantial worsening in the appellant's condition; appropriate awards were substituted. Domestic assistance did not meet statutory threshold for damages under s 15 Civil Liability Act.

Court Disposition

Cross appeal dismissed with costs; appeal allowed with costs; primary judge's awards set aside; parties to file proposed orders for substituted damages including interest.

Orders

  • Cross appeal dismissed with costs.
  • Appeal allowed with costs.